HomeMy Public PortalAbout2012_tcwsmin0109Council Work Session January 9, 2012
Council Chambers, 25 West Market Street, 7:30 p.m. Mayor Kristen C. Umstattd
presiding.
Council Members Present: David S. Butler, Thomas Dunn, Katie Sheldon Hammler,
Marty Martinez, C. Terry Titus, Kevin Wright, and Mayor Umstattd.
Council Members Absent: Council Member Dunn left at 10:08 p.m.
Staff Present: Town Manager John Wells, Town Attorney Jeannette Irby, Deputy
Town Manager Kaj Dentler, Assistant to the Town Manager Scott Parker, Director of
Plan Review Bill Ackman, Director of Public Works Tom Mason, Director of
Planning and Zoning Susan Berry Hill, Deputy Director of Planning Brian Boucher,
Deputy Director of Finance Kim Williams, Zoning Administrator Chris Murphy,
Economic Development Manager Marantha Edwards and Clerk of Council Lee Ann
Green
AGENDA ITEMS
1. Work Session Items for Discussion
a. FY 2011 Audit Report /FY 2012 Budget Update
Kim Williams: Good evening Madam Mayor and Councilmembers. My name is
Kim Williams and I am the Deputy Director of Finance. In your Council packets,
you should have received the staff memo regarding the Comprehensive Annual
Financial Report and related documents. With this memo you should have also
received four documents: 1) The CAFR; 2) The SAS 114 communications letter
from the auditors; 3) The management letter from the auditors; and 4)
Management's responses to the auditor's management letter. I would like to briefly
point out three things regarding this year's audit. First, the Town received an
unqualified opinion regarding our financial statements. This type of opinion is issued
when the auditor can state, without reservation, that the financial statements are fairly
presented in all material respects in conformity with generally accepted accounting
principles. It is the highest opinion an auditor can give. Second, over the last five
years, the finance department has worked diligently to improve the internal controls
and the reporting of the Town's financial data. Though this is an on -going project
and improvements can always be made, the efforts that have been put into this project
by the staff in the finance department have not gone unnoticed and should be
commended. Management letter comments have decreased in the last five year
(without a comment having to be repeated) and audit adjustments have decreased
from 138 adjustments in 2006 to just two adjustments in 2011. The final item I
wanted to mention before Mike Garber of the audit firm PBGH formally presents the
financial statements is this: the Town of Leesburg implemented Governmental
Accounting Standards Board (GASB) Statement No. 54 during fiscal year 2011. The
changes required by Statement 54 are reflected in the financial report that you have in
front of you. Briefly, Statement 54 changed the presentation of fund balance in the
financial statements. In June 2010, staff provided an update to Council regarding the
changes made by the Governmental Accounting Standards Board (GASB) regarding
the implementation of this standard. No longer will you see fund balance as
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"unreserved and undesignated ". Rather, fund balance is based primarily on the
extent to which the government is bound to honor constraints on the specific purposes
for which amounts can be spent. The classifications of fund balance are in five
categories: nonspendable, restricted, committed, assigned, and unassigned. The five
categories have been defined in both the Management's Discussion and Analysis and
the Footnotes in the financial statements. Further, GASB changed the definitions of
fund types. In June 2010 we indicated that the special revenue funds (Balch Fund,
Symington Fund, Uran Fund and VA Bowie Fund) would be presented in the
financial statement as part of the General Fund and that the fund balance in these
accounts would be reported as restricted. You see the full impact of the GASB
implementation in this CAFR on page 29. I would now like to turn the podium over
to Mike Garber, partner with the audit firm PBGH to present the audited financial
statements and SAS 114 letter.
Mike Garber: I think I have been remiss in years past not introducing Dwight
Buracker who has been with me and Dwight runs the day to day operations here. If
you ask the right questions that I can't answer, this would all be his. Dwight and I
were actually doing a presentation last Thursday at Northern Virginia Transportation
Commission and saw Ken Reid there and I was talking with Ken and now I
understand the puzzled look on his face when I said I will see you Monday. I was not
as up to date as I should have been. He kind of looked at me and I don't think either
one of us realized what Monday evening was.
Mayor: Mike, Terry Titus is our member of Council until the special election in April.
Garber: I see you still have the old name plate there.
Titus: I have had it for 34 years.
Garber: Well, Kim covered a lot of what I was going to go over as far as the
opinions. I will go over major changes in the financials with the new fund balance as
well as the removal of the ... or the inclusion of the special revenue funds in the general
fund. There are two other opinions in the document as well ... in the financial
statement document. Those opinions are in the very back in the client section. One
opinion is on internal control and compliance issues. There was one minor finding
talked about in comment 11 -a -1. The other _ is on the federal compliance and
compliance . That opinion was clean and was unqualified as well. I'm not going
to go through the financial statements. You have read these before. It is very similar
to what you are used to with the management discussion and analysis in the front. It
is a great overview of the year, not only 2011 but back to 2010. It talks about some of
the significant changes from year to year as well as some of the budget initiatives that
you have. There weren't any major changes to the footnotes. They did discuss in the
footnotes that there are five categories that Kim talked about in the implementation of
GASB54. So, if you want to look at the definition, you can find that there in the
footnotes as well. Following that, you have more detailed statements where you have
your budget and actual statements where you can see your revenue major categories.
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Certainly not every line item, but the major categories of revenues as well as expenses
and expenditures compared to the original budget as well as the final budget and see
how you did there. There are also two year comparisons for your enterprise fund,
water and sewer fund as well as the airport fund so you can compare 2010 and 2011
statements as well. In the last section... second to last section, I should say ... in the
statistical section gives some great 10 year information. Some people call it data,
some people call it information. But certainly shows some trends and things of that
nature with revenue streams, expenditures, spending categories. Also talks a little bit
about your debt, your debt compliance. Gives some great ratios in these tables
comparing debt to per capita... things of that nature so there are just some great tables
to look through as well. I know last year, you did your budget almost on a two year
basis really, so that is a great place to look when you are getting to start the budget
process. You tackled that beast last year pretty well, but it's still a good place to look
when you are trying to see those trends. Certainly you can see the effects the
economy has had on those numbers and those tables. The good news is hopefully
things will start turning in an upward direction from this point forward. So, that's
really all I had to say from a financial statement. I can move on to the letters, if you'd
like. If there are no questions. Or I can just go to the letters and we can answer
questions at the end. You should have received two letters. One if the document that
is bound in the maroon cover with PBGH. That is the report to the council and it is
dated this evening. You have seen this report before as well. It talks about some of
the more significant items that happened during the audit which Kim and I have
already covered. It goes over some of the more significant journal entries and things
of that nature. Some of the more significant estimates in the financial statements.
One thing I will add to the report that Management did ... I was able to look through
that this evening before we met ... I am getting more and more detail out. The number
of journal entries, I think for the last five or six years, you can see how that number
has significantly changed in the last six years. They also detailed out the number of
findings on the management letter that we have had over the past five or six years.
Several of the things we put in the management letter aren't necessarily financial. We
put in where future GASBs that are up coming. I think last year it carried the new
1099 reporting that was going to be required by the IRS. Subsequently, it was
defeated on appeal. We put those things in there as a look to the future to let you
know what is coming. We do not consider those types of things findings, but they did
so when you look at that count of things that were findings, certainly future GASBs,
IRS rulings or things like that aren't necessarily auditor findings, just more to let the
management know what is going on out there and some things to think about. The
other document ... the last document is the management letter. I believe it is just a
three page document on PBGH letterhead and again there is really three comments, I
would say out of five in here that we would consider of things that we looked at
during the audit. One had to do with cash deposits at Ida Lee. The other one had to
do with the schedule of federal awards. There was a small issue there but an issue
nonetheless that auditors were required to report in some type of finding. We decided
to put it in the management letter. Then on the last page, there is a very minor
finding that had to do with VDOT money and urban street maintenance, but one that
we thought we should report. It doesn't have as much to do with the dollar amount,
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as you can see, it's a $3 difference expanded out to a whopping $36. The issue we
wanted just to make sure that we covered there was and I don't think this will ever
happen, but if you are not using the correct rate, VDOT could say even though the
rate you used was less than you are allowed, we are not going to allow any of it
because it is not the correct rate. I don't think that will ever happen, but on the off
chance it would, we just want to make sure we are using the correct rates. I will point
out that it did not cost the town any revenue because there is a certain amount that is
allotted to all the towns of the VDOT money and you well exceed your expenditures
of what you spend on the streets and so forth, so it didn't cost the town any money by
not using the correct rate, but we just want to make sure that we stay in compliance
with what VDOT has. That is all I have prepared this evening. I will be happy to
answer any questions.
Hammler: Were you involved in ... and I don't know if this more of a policy, but
some of the accounting issues relative to what we are planning to do with the airport
fund relative to debt moving...
Wells: That will be something that we are bringing to council, I believe at your next
meeting. This is a look back at FY11. The changes that we are looking at in terms of
changing from the airport fund being an enterprise fund to a general fund will actually
occur during the course of this year and Mike and his staff are aware of that and will
be part of that as we go forward and will be able to, as we present the option, because
Council actually has to take a vote to do that officially, will be able to highlight how
that will change your fund balance numbers and bring us to the positive, as we are
looking forward, but we will be able to go into that at your next meeting.
Hammler: In the same category, more to the timing and when are we going to get
them ... what about the Balch /Virginia Bowie fund. When will we be addressing that?
Wells: You will be addressing that over the course of the next three to five months.
Probably closer to three rather than five.
Hammler: So, it will be after budget?
Wells: Right, that will be after budget. What you have though, is an accounting of it.
It is in a separate fund that is now referred to as restricted fund balance and it is
itemized out so we have a dollar amount there, tracked very clearly and how that's
used is more something that will be a discussion of council as you set up ... in theory
we are looking at setting up the discussion of an actual endowment, potentially
working with the Friends and setting up an organization that would allow for
fundraising and allocation of those funds. That is something that as that would be set
up, those would all take votes of Council and we would be working very closely with
our auditors on that.
Butler: Just one question. What is the total dollar amount of the improperly
recognized revenue in the 7 11 -01, material weakness in internal control.
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Garber: The deferred revenue entry ... in the other document is found in the green
document, the two major journal entries and then in the detailed operation is
$754,000 amount.
Butler: I was just wondering ... $754,000 is large enough... okay, thanks.
Garber: everything is ... materiality, when you look at the town as a whole, that is
probably not material but when you drill down to the individual fund level, it is.
Mayor: Mike, just one question. I know that I guess in the gray packet, note 15 has
pending GASB statements. Should we anticipate anything coming down the line that
would require us or urge us to go beyond two year planning efforts.... budget planning
efforts? Are we likely to see anything that suggests we go to five year planning?
Anything like that?
Garber: I would assume you refer just to the General Fund and Operating budgets.
Most entities do a five and ten year capital projects plan. So, looking at the general
fund, there are no GASBs out there that have been signed and finalized as of yet.
There is a significant one that is still in draft that I would say the majority of the
country is fighting GASB on not issuing and that has to do with recognition of the
liabilities that you don't have recorded in your balance sheet... deferred pensions,
Things of that nature. So, if you were to look at the VRS reports and what the
actual assets versus your future liability, that future liability doesn't get recorded in the
balance sheet. We make the payments that VRS tells us to make every year. As long
as we make the payments and are working towards reducing that liability as we are
every year, there is nothing to recognize. Same with other post employment benefits.
As long as we are making what the annual required contribution is, there is nothing to
recognize as a liability. That GASB could have a pretty significant impact on your
financial statements. Other than that, there is really not much going on out there
luckily right now. Very few localities, certainly none other that I deal with typically
look at that budget with as much detail as you all did last year for the two year
process. We struggled to make those decisions.
Wells: I think as a general wrap up and again we can go over these numbers in more
detail when you get your budget next month. Fund balance ended up in a positive
position, slightly ahead of what we had projected in budget in terms of current year
revenues and expenditures for FYI 1. Very important that we complied with our
fiscal policies to have current revenues not be less than current expenditures and that
was something the Council strategically did over a multi -year period, so that was
positive. The airport fund, excluding debt and depreciation ended up in a positive
light and again we will be changing that and there is a longer story that goes with that.
Our rough calculation, because there is a difference between how the books are
calculated when you deal with the CAFR versus how you do rate setting, but
generally we are on track with our utility fund operations compared to our rate study.
More detail to come on that later. There are no surprises in here and I would
highlight as both Mike and Kim mentioned, if you look at that cover memo from
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Norm to me and Kim, highlights an overall trend that the accounting department has
really made some significant strides, as well as the whole organization from a
financial management perspective. 138 journal entries down to two. That's pretty
significant in terms of accounting practices, but the numbers are where we had hoped
they would be. We would always like them better, but they have not provided any
problems as we go into putting next year's budget together.
Wright: As we were going through and not having a lot of comments, I think we
were remiss in not recognizing staff. I think you probably should have found a way
for there to be like two other 1 cent entries because you have left yourself very little
room to exceed expectations for next year. But really compliments to the staff on a
very good report.
Garber: You made some great changes in the finance department in the few years
that we have been here. Kim and Norm are very conscientious as well as the rest of
the their staff. I mean, they do a fantastic job. I also want to commend you, as John
is talking about the decisions you made in sticking in sticking to your financial
policies. You know you all made some tough decisions at the end of the last fiscal
year concerning personnel and those were difficult to make and I wasn't here for the
debates and I'm sure that they were long, tough decisions, but I think the town as a
whole... The future of the town that you can see the impact of the decisions that were
made financially on the town side, anyway. I think it will pay off.
Mayor: we appreciate that very much. Thanks, Mike, and thanks Norm, and Kim.
Very good. Dwight, thank you.
b. Mason Enterprise Center — Leesburg Update
John Wells: I think you have all met Susan Henson at one time or another over the
past couple of weeks or months.
Susan Henson: I just wanted to kind of give you all a little update on the progress
that we have made so far and where we are with the plans at the incubator and we
will touch on a little bit of the financials once we get through. In these first few slides I
just, for those of you who were not as familiar with Mason enterprise Center and the
mission and objectives, I kind of included those in your packet. For those of you who
have been with the project for a while, you are probably familiar with that. The
Mason enterprise Center is really geared towards help focus the energy and the
resources and the intellectual capital that is available from George Mason University
on the operation and creation, business development, supporting economic
development and that kind of thing. So, really coming into the community and trying
to be a partner with the town and the County to make that happen. Again, just too
kind of included those goals and objectives for you to remind folks what we are here
for and what we did try to support in the business community. We are making good
progress on a lot of those and some of those further down the list as we begin to
cultivate relationships with the clients, we will get into more of those activities as
well. Already we've had a really great start and we've gotten really great help in the
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community, great media coverage, fantastic word -of- mouth. There's not a day that
goes by that I don't have clients or potential clients who are just interested people in
the community coming in and wanting it for and wanting to look around. The clients
that we do have in the building already are very gracious. They're willing to take time
to talk to people and have been great at attending the open houses that we have had
over the holidays. I'm sure you find that we have a great group of folks that are in the
building. Looking at some of the activities, we have already begun having kind of
lunch and learns, meet and greets, kind it to get the clients more familiar with each
other. We do believe that educating client educational opportunities for clients will be
one of the ways that we can help foster their growth and accelerate their success as
businesses. We are also recognizing that peer roundtables are another way that they
can learn from each other. It's really being involved in the community has already
given many of the clients advantage in that they can talk with other leaders about
strategy and successes and have many little celebrations. We have the several times
during the month so it's kind of an exciting place to be. We begin setting up this
month individual counseling sessions with those clients to make sure that they are on
track, to help them set goals if they don't have those and really look at sort of charting
a strategy for them to move forward successfully in the incubator. We are
cosponsoring community business events. The first one, probably the major one
that's coming up at the end of the month is the finance fair that we are having our the
financial form that we are having. It is cosponsored with the Loudoun chamber, the
Loudoun economic development and the Leesburg economic development as well.
So it's a really good event that we are looking forward to doing more of that kind of
thing. Just kind of continuing to stay involved in the community and anything that
has to do with forward inertia. Stop me at any time if you have question, I don't mind
being interrupted at all. Looking at kind of an update on the incubator itself and the
clients that are in there, I have included in the back of the packet a couple sheets that
give you a little details on a virtual client versus a resident client. But resident clients
are obviously those that have residence in the building. They have an office, they pay
rent. We have about 26 actual office space is available. One office space is sort of a
flex cube. We have 13 clients currently, so we have about half those actual office
space is filled. I have some details there. The third floor is filled up a little more than
the second floor, but we are starting to see some activity on the second floor. The
third floor is very active and for those that like energy and like to get out with their
peers, that's the place to be and we'll got a good group up there. The second floor
clients, the one that just came in last week and has committed to space that they were
looking for... They like talking to peers but they wanted a little bit quieter space to
work so the second floor is perfect for that. Slight little miscalculation on my part, if
you are around the center very much you realize that things sort of change on a
weekly basis. We have some clients that have moved from resident clients to virtual
clients and some that graduated and so that should be 13 offices currently available,
and if you do the math from 26 and we have 13 filled that should make 13 available.
So 13 are actually available at this point. The one flex cube as I mentioned, we have
one telework client that uses that once a week. So we have some space available
there. On the second floor we also have potential to put two cubicles in an open space
that we have on the second floor. So there is some room to expand. We are looking at
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those two cubicles as a space for potentially growing businesses who have an office
and maybe need some additional space so we are looking at that in the future. Virtual
clients, we have seven currently and a lot of interest in this particular type of client. It
is a good way for businesses who don't really need to have a physical space and can
perhaps work out of their home but they need space to meet with clients or customers
from time to time or they need access to a training room from time to time. They
need a business address. So virtual clients, we've seen some good interest in that. It's a
good way for them to step from getting acclimated to the center and a biting off a little
bit of a feed without having to commit to that entire office space and that comes down
to a lot of things. Currently, we have existing mailboxes for four more virtual clients.
So should we fill those, we will buy more mailboxes and put them on the opposite
wall. So we have room to grow in that area as well. I do get questions about the types
of businesses. So I just kind of threw down the high points in terms of the types of
businesses that we have in the incubator. It really runs the gamut. We have not... We
have specifically not chosen a particular sector. We are not all tech businesses, or all
this or all that. We really want this to be open to any kind of business that is a
scalable business that's looking for a place that they can grow their business into a
bigger and better business. Now I have to relate you can see from the list that we've
got we do have some of what you would consider IQ businesses. We have some that
are in more marketing related business and some that are certainly in the in the
consumer sector. So I have a good mix at this point in the space. Just a lot of good
energy and they are learning a lot from each other. Really good mix there. If you're
ever interested in getting a more detailed mix on who the clients are, specifically, I do
have that information as well. Moving on to the financial information, I just put a
snapshot of December... The income statement for December so you can just kind of
get a feel for some of the... What the revenues are looking like, what some of those
expenses are. You can see a little bit more of that detail here on that particular page.
We have about three months worth right now so this'll be kind of the third month that
we've gotten some data that we can look at and begin to analyze. We are beginning to
get that information. Then if you look at the next page...
Titus: Just a second. Can I ask you where the grant came from, the $10,000?
Hensen: Yes. IDA. That specific proposal was pitched to them to outfit our training
room with LCD projectors, screens, and hopefully some chairs. If you have been to
the training room, we have got a mix. If you like variety, it's the place to be, but we
are hoping to get that training room a little more professional and certainly a little
more technologically advanced because we are getting demand for having LCD
projectors, so that money was given for that particular purpose. We are looking this
month at a move on that. Then looking down the road at some other folks who are
interested in providing grant related funds. Looking at the projections, the first three
months are fairly actual and were looking beyond that just kind of doing some
projections in terms of this speed at which we will increase the number of clients in
the building and also looking at really putting some effort into marketing to launch
some of that growth and move some of that birth for word as we move through the
rest of the year. Currently we really don't have good marketing materials so we are in
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conversations with some folks to begin to work on that but those kind of things take a
little bit of investment and to begin to be prepared. And our website will need a little
work as well so we have got some sources that we are going to try to partner on in
terms of getting that work done and getting a reduced cost. So I think we will be able
to get good bang for our buck. Also looking at enhancing the facility with some
additional furnishings and office supplies, those kinds of things for clients. Lastly, just
looking at future steps, certainly we have our advisory board list now pulled together
and that advisory board will meet here within the next month for sure by the end of
January. So looking to being able to pull that group together to get some good input
and help get some guidance and feedback and direction to move forward. That's what
I have. Questions?
Mayor: Very good. Thank you.
Wright: no questions. Just hear about the stuff you're doing a various venues
throughout the town so appreciate the ongoing efforts.
Hammler: great to see you Susan. I just wanted to pass on some feedback that we
have heard that the EDC meeting Friday. Was giving her SPDC update and
she mentioned that she was really appreciating being located there. She is seeing so
much more traffic, all this energy, all the energy. Just the idea of all of the co- location
of business support services is a benefit to the entrepreneur and community of the
entire county. So lots of great benefit. One just, follow -up question as it relates to
additional services that tend to be regionally dispersed in places that are very hard for
us out West to get to. Are you taking any steps to leverage some of the other great
Mason enterprise really University services like the PTAC, the procurement technical
assistance Center, things like the women's entrepreneur Center that is based in
Springfield? What and how could we physically bring some of those resources out
here for businesses on a regular basis?
Hensen: particularly the PTAC, I mentioned that only because that's one that we are
going to have to talk about in just the past week in terms of getting them out to our
facility to put on a seminar. They do kind of an introductory to their services and kind
of what to expect. That's certainly something that I think we could move on and
certainly the women's Center. Any of those kinds of services are certainly the idea.
That we have a location here makes that another sort of stop on their route, if you
will, interns both providing those kinds of resources and certainly having a counselor
come out a certain day of the month or day of the week to meet with clients would be
beneficial as well.
Butler: so it just looks, based on this chart even without the grants it looks like we
will be slightly positive for the year and that's great. My expectation was that it would
take longer than this.
Hensen: we are trying to be very fiscally responsible. It's certainly not a bad thing
having to go through the procurement part of the University at this point. Really all
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kidding aside we have tried to be very responsible with our spending money and look
at ways we can be creative with partnering as well.
Titus: could you or do you use local businesses to help with supplies and that kind of
thing, in -kind services and those kinds of things?
Hensen: we would certainly be open to that and that's kind of one of the things on
my sponsor list that I now have gotten pulled together. You know, getting a list of
those kinds of things that we would be interested in, network services is one that floats
to the top of my mind in terms of something that we kind of promise to be
forthcoming but we would really like to find a budget for. Any kinds of supplies or
additional services we would be very interested in.
Dunn: where do you see... You mention some general improvements that you see
happening over the next few months, but where do you actually see the increase in
fees and rents over the next six months? How do you propose getting from two or
$3000, you are obviously expecting to get more than $10,000... What are you basing
it on?
Hensen: basing it on traffic so far and results that we've had so far as well as
knowledge about incubators and how they kind of go up and plateau and then there's
a shift and you might take another little job, so we've had really good traffic...
Excellent traffic so far and it may be that this first year we really do have quite the
supplement maybe given the second year ... we plateau a little more. But we are
getting very good interest and commitment, really. Folks that come in that have
heard about it. They have received some information and actually do come in for a
tour, about 90% of them are booking space. If I can get them in the door, generally I
can close them. Generally, at that point, it's kind of "I did want a way to come in
anyway ". So that's really where that optimistic, if you will, positive growth is coming
from.
Dunn: That's showing a 33% increase in six months so that would be pretty
optimistic. I look forward to seeing it.
Hensen: Thanks.
Mayor: Susan, just to follow -up on your last statement. Is there a way for you to
market to our home based businesses and are you targeting them?
Hensen: I haven't necessarily targeted them at this point, but we plan to work
probably with Robin since they have access to a lot of those clients and work
with, I am sure, a lot of them already so doing more targeted marketing in terms of
the specific piece that may be oriented to are you in a home now? Are you looking
for... do you feel that it is time to grow beyond that? So, certainly that's a great idea.
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Mayor: and then on your marketing, this is the follow -up on a question Katie asked,
and Keith Segerson and is here, so thank you Keith for being here as well. Does... I
would gather George Mason does not have a marketing or web template that all the
incubators would use because you seem to be needing to develop your own marketing
materials and website. What has led to that diversity in the incubator network?
Hensen: there is to a certain extent some of that, logos are developed, you know
we've got websites... There is our main website that we will certainly use as a
template... Their existing hosting companies so we do have the URL is already there.
So we do have a lot of that basis for that already in place. So it's not starting from
scratch necessarily. Putting together a piece that could be used for the Mason
Enterprise Ctr., Leesburg is something that is existing at this point. Is there language
that we can use and other ideas we can gather from other centers? Certainly. I will
also say that what I will be working with the board of directors over the coming year
to develop some more consistent branding so that we can have which were speaking
of which is a more consistent look, a more template kind of thing... not really the
uniqueness of our particular place, but having a more brand identify. While we are
developing some things, I don't necessarily want to go out and do it all until we can
kind of maybe get our arms around it.
Mayor: What's the attraction to the third floor? Is it the view? Is it the office space
type?
Hensen: I think the view some ways. I think partly it's the core group that sort of
initially started there. I think there were some work worlds in that core group initially
that brought in some folks that they were familiar with. Then you have enough of a
critical mass that it feels like something, so you walk the halls and there is somebody
there and they are chatting... then it kind of builds from there. Nothing other than
there was a critical mass that got started there.
Mayor: Thank you very much. This was a great presentation. I appreciated it.
Marantha Edwards: Let me empathize a little bit of what Susan is talking about with
some of the partnerships we have going on with... one of the things that Robin Suomi
mentioned at the county EDC meeting is that we have the finance fair on January
27t ". My apologies, I'll send out the electronic notice of that. It has gone out to the
public. It is January 27t''. It is funding business that the SBDC and Mason Enterprise
Center, and town have kind of been working on together. So, again in the same
location. We are working on a veterans program and we are working on what we call
a Tech Talk program so within the next two months, we will have two to three more
events that we will have worked on together generating more interest in the Mason
Enterprise Center.
Keith Segerson: My apologies. It is hard for me to be quiet. I did bring this. The
Northern Virginia Technology Council, which many of you may have heard of. They
came out with a techtopia map of various significant vendors and clients and
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members. Leesburg is in it this year. The MEC- Leesburg right there. I brought these
for you and it shows some of the other MEC networks. Anyway, I brought these here
and it is hot off the press.
Hensen: I will in closing, just follow -up with what Marantha said. The great thing
about how that little group of clients within the building ... it is a great sounding board
or a great way to listen to what is going on. Just to ... I think that's what spurred us to
say let's get this sort of tech group together and pick their brains and find out, because
I had a few folks who were saying can we get more of that out in Loudoun. It is all
down near Dulles, Tysons or DC. So, it was like okay, cool, let's talk. It is going to
be a great way to really get some insights into what the community is interested in.
Segerson: One last thing. This is the first time, I think, that we have had the
opportunity to speak to this group, but I did want to publically and formally thank the
town and the Council and John and our legal support who worked with us and the
folks from the staff and John, who really worked very hard to make this happen. The
effort and time spent working on details and mini - blinds and cleaning the facility and
everything that made this happen was exceptional and without that support, we
would not be successful. Thank you very much.
C. Villaize at Leesburg
Brian Boucher: Madam Mayor, Council and Councilman Titus, the once and future
council member, whatever that is. He is back, essentially. What we are here talking
about tonight is we had a public hearing in December on an application changing the
concept plan and proffers for the Village at Leesburg. What I want to do is give you
an overview of those issues that are still outstanding between the staff and the
applicant. The applicant's representatives are actually here sitting on the first row
behind Council Member Martinez. Since the public hearing, one thing is while the
concept plan issues are resolved, they generally were resolved then and they still are
now. So, as far as the changes in uses that the applicant is just requesting as part of
this application and the changes in the concept plan regarding the buildings, staff
doesn't have any objections of anything proposed. What it really boils down to is
there is one proffer issue that remains unresolved. That is with Proffer X, proffer ten
that deals with two different types of proffer contributions. Once again, just to try to
help avoid confusion, remember one of these is an AADP payment that goes to the
county, or the way the proffer is written now it could be to the town now that the
AADPs are no longer ... have expired. The second is a school capital facilities
contribution that comes out of our town plan... a guideline in our town plan. So,
there are two separate payments and I'll speak to the one. Proffer ten has two
paragraphs. The second paragraph deals with the AADP payment. Basically what
this said, there is an obligation under the AADPs that if the town put residential
density in a place where it wasn't before, then we would make a payment to the
county. There is a little over $2000 and we would make that payment to the county
for each residential unit that they got a zoning permit for, or actually built. That
payment has been collected from the applicant for the 335 units that have been built
so far. There is up to 300 units remaining and the proffer has been amended to say is
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that contribution, $3300 and change could be made to the town in the future now that
the AADPs are determined not to be in effect. So again, the _ multiplied that's
$3300 is about $998,000, approximately a million, if they build all 300 units that
remain to be constructed in Landbay C. Staff does not have any disagreement with
this proposal. Essentially what it is, is the old proffer said if those payments were due
and owing to the county under the agreement that we collect the money and give it to
the county. There is no opportunity for the town to get any of that money. I think it
was clear to the county that the AADPs expired and that the obligation for the
developer to pay that money expired with them. They had altered the language to say
that they will continue paying for the up to 300 units ... that money instead would go
to the town and not the county. The town's position is that the AADPs have expired,
so actually that money would come to us. So, as far as the AADP payment goes, staff
recommends... we like the change they made in the proffer. Now, the other proffer...
Dunn: So how much money was it?
Boucher: Approximately $998,000 maximum. If they build less than 300 units, take
$3300 off....
Butler: Can we round up to a million?
Boucher: A million is good enough. Now in Proffer X, the first paragraph of Proffer
ten, the first paragraph talks about school capital facilities credits. And again, in our
town plan, excuse me ... outside the town plan a guideline was adopted by the Council
back in 2005 that said when somebody is increasing residential density that we would
collect a school capital facilities contribution. We would recommend to try to get
from the applicant a school capital facilities contribution as part of the rezoning and
that money then would taken by the town and would be ultimately transferred to the
county to the Loudoun County Public Schools for spending on capital facilities within
the town. So when we originally approved this application had a proffer that
addressed this and there were up to 635 units that would be developed as part of the
Village at Leesburg over time and the maximum payment that would be due under
that proffer, if they built all 635 units would be approximately $5.2 million. The
applicant amended the proffer language to say that because of the transportation
improvements that they made as part of this rezoning, and that's the regional ... offsite
regional transportation improvements that they would like this credit to be
extinguished. So that's basically ... we spent a lot of money on roads ... we spent more
money on roads ... we would like to get credit for those roads to be applied against the
school capital facilities contribution and therefore... from staff position, we don't
endorse this for several reasons. We believe that $2.6 million of this money is owed
to us. That's staff's position and that if you change this proffer retroactively... it's kind
of retroactively changing. In the future we would say we will forgive this. Council
has that authority, but we are not sure it's the best precedent to set. These are school
capital facilities contributions that we think we have now. If they are removed, you
are going to have to make that up somehow. Third, we have dealt with the county
through this process. We have asked them to apply their own credit policies that they
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have for all proffer guidelines and would they give a credit for this? They have told us
they would not. They have recommended that no credit be given in this case. Now,
from the applicant's standpoint and what they have argued and retroactive
amendment of policy is kind of a council policy. In other words, this rezoning that is
here before you now they are asking for a change in proffers and amendment of
proffers. You, the council have authority to do what you will. What they have then
asked staff to consider ... I think they brought to the council before and really their
argument is that the offsite regional transportation improvements in total, and this is
what we would credit them... staff under our formulas, we would give them half credit
for Russell Branch Parkway and also half credit for Crosstrail as well as a portion of
the interchange. It is approximately 23 million. In the town plan, we have a
recommendation for offsite regional road improvements. It is a contribution. If they
don't do it, we will give you credit if you do them, but if you don't do it, it could total
$7.3 million in this case. At the time of rezoning, we knew that given the
improvements they were proposing it exceeded that so we did not collect a regional
road improvement from them. They were going to do it in -kind as part of the
proffers, build the interchange, build all four lanes of Russell Branch, build all four
lanes of Crosstrail. So that's what they are saying, we have spent a lot of money on
regional, that far exceeds what you would normally ask for in a rezoning and it far
exceeds the maximum $5.2 million, so give us a credit. They also point out that at
least in the latest version of the proffers, they have changed proffer X on the AADP
side to make the contribution. The AADP payment could now come to the town.
Again, that's up to a million dollars. It could be less if they built less units. The point
is that would be money under existing proffers, the town could not get. If the AADPs
are expired, it would mean that they do not have to pay the county that money. It is
money that would just simply go away. The developer would not have to pay out. I
think further to address concerns of the town about the retroactive payment of proffer,
they proffered an indemnification clause, which basically says we will protect the
town in the amount ... first if somebody sues on this, being the county or someone, we
will indemnify the town. We will actually pay fees, etc., handle that suit, but on top
of that, if judgment is awarded against the town. If somebody said you know what,
that money was owed to ... in this case, the county, you retroactively changed the
proffer, they would actually indemnify the town up to the $2.6 million that would
actually be paid out. One other thing I will say, we have got all these numbers here.
Just keep in mind this, the $5.2 million is a maximum if all 635 units were going to be
constructed. You all will see at some point in the near future, there are two properties
here. When we think the Village at Leesburg, we think all the built up area. On the
south side of Russell Branch Parkway, there is landbay C. You can build up to 300
residential dwelling units there. That hasn't happened. The owner of that parcel, he
signed the application, he is part of this. You have an application to change the
density there. It looks like he is going to drop it to about 160. That is an application
that will come to you in the future. So, you really have kind of two parts here. The
2.6 million figure, where that comes from is the money that we think we should have
already collected from the applicants up to this point. I think what the applicants
would want to point out is when you are looking at all of these numbers, $5.2 million
probably would not be collected by the schools now because it looks like the density is
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going to drop on the other side. So you are probably going to lose, because if you
drop it down to 160 which is the tentative figure we from 300, you are going to
decrease it pretty substantially. Then on the other hand, they are actually now
proffering up to a million. Again, it depends on how the is collected, but they
are proffering additional money to the town that doesn't exist in the current proffers.
Of course, the roads are all in. The Council would have to say that we are going to
basically amend the proffers so that we will give them credit for the school capital
facilities contribution... we will give them credit for that because of the transportation
improvements that they have constructed. So, hopefully this hasn't confused you too
much. It is simple. Sometimes I say it is simple then other times I look at it and it is a
little more complex. But some of the numbers can move a little depending on the
amount of units they are going to be making. That affects the ultimate total. The
$5.2 million is assuming they built every unit they are going to build. From staffs
standpoint, that's the worst case scenario potentially, so that's kind of what we want
to be put out there. So, I am hoping that you all understood this and I think what I
will do now is say staff is finished and we will turn it over to Council for discussion.
Mayor: Let me just see whether the town attorney is comfortable with the revised
proffer language.
Irby: I am comfortable with the revised proffer language. I think it's down now to a
policy decision by Council.
Mayor: Alright. Very good. Thank you. Brian, thank you.
Wright: I think the only question I have is ... and it looks like this language changed
from Planning Commission to Council, but it looks like it was contemplated that
some type of credit would be given and the wordsmithing created some challenge in
how that would be applied so the current proffer language implies there is the
possibility for a credit and the mechanism was goofy. That's a technical term, by the
way.
Boucher: What you will find is the applicant disagrees with us. I think that staff
thought that the way the proffer was written that something had to happen in the
future from the county school board. Based on what I knew, their contention was
that they really intended that they get the credit up front that this was going to be
something that would have been credit. The contention has been, when we discussed
this, we did not think we owed you all the $2.6 million. That's kind of the sidebar
discussion between the applicants and staff. I think it is fair to say that they were
looking to build in the original proffer a way to get out of making this kind of
payment.
Wright: And then, if we talk about the credits ... the other item. Now, I guess the
future application is also going to talk about Landbay C and what those uses may be
so depending on the ... today Landbay C is age restricted units that would not generate
school children, today.
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Boucher: Would not generate school children, but I will say this ... one of the points
of contention between the applicant and us is when we talked to county on this on a
number of occasions, it was would you charge them for it? The answer we have
gotten from the county is ... I will tell you this ... is well we negotiated during the
rezoning and since ...it wasn't if you didn't go there ... we charged...
Wright: I understand. And then, one of the things I found that was interesting as far
as what has changed in the intervening time, one of the things that changed from the
time of approval to actually getting the construction done on the ground is the
interchange was much more involved including... they didn't include their soft costs.
I know the soft costs on the sound wall alone were probably significant based on the
negotiations and that was more generated by VDOT than by us of pushing that road
closer to the residential properties on the opposite side. The other thing I found that
was interesting... usually it works the other way... this applicant was always telling us
we are not going to generate that many school kids in the apartments within the
mixed use center based on the type of use and all that. Usually they are wrong. In
this case, it is now fully occupied and they are generating six. So, even if you take the
six times whatever the single family home rate is, and you look at the other credits, it
does seem that it is worthy of consideration.
Boucher: What we did was we just applied, the resolution said apply it per unit. So,
that's how you get the $5.2 million number. One thing with the ... the applicant, I,
and certainly other staff have gone on about numbers and how much it costs to build
things. I think it is fair to say that they did not give us the soft costs so there would be
additional costs to it. Again, their argument has been that ... I don't need to make
their argument for them, but what they have certainly said to council before, and
certainly to staff is that we think we built more transportation improvements than any
other rezoning the town has had. That's a true statement, at least in my experience,
but to ask for a credit... although staff's position is that at the time of original
rezoning, you negotiated the situation that you have now. So, we are saying what
was negotiated then should stay the same.
Hammler: Well, Brian, you have just focused on to me what I am hearing is one of
the key points, which is as much as this is somehow this is being interpreted as a new
rezoning, it is based on an interpretation of policy at the original rezoning, which
really was a very important time in our history as it relates to a very difficult time for
certainly any mixed use project to be accepted. It was accepted based on the
parameters and the expectation certainly that we made as Council members to
taxpayers relative to what I recall as literally we knew it was going to be about a $25
million interchange. We knew that there were voluntary proffers that had been
offered and we had wed that proffer statement that was voluntarily presented, which
in fact I believe somehow may have been expected to have been interpreted that some
new County policy would have perhaps applied a credit, but in fact no additional
county policy has been amended, so I think the essence is at the time of negotiation is
when the interpretation, if you will, the allocation of the capital facility would be into
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play. So, I think that's the central issue. Ultimately to your point, I think it would set
a very unfavorable precedent as relates to a Council determining retroactively that
you know, okay now we are going let the taxpayer that they are going to pick up the
difference in bills and /or that there is an expectation that money will not be collected
as was originally voluntarily provided. The other area that I am uncomfortable with
is even the concept of indemnification pits us against the county as relates to the
importance of all of things we are trying to accomplish with the county. Of course, at
the heart of the matter is we are the county. We are county taxpayers as relates to all
of the basic fundamental infrastructure required when we have major development
going on in the community. So, I very much appreciate how you fairly tried to
balance all the different angles, but as much as we are calling this a rezoning, it is an
interpretation of an original voluntary proffer. That's how I am understanding it.
Boucher: I think they are coming and asking you to change a proffer, at least staff s
interpretation, would you require to make things retroactive.
Hammler: And I was part of that 2005 decision. One of the four council members
who were willing to accept that rezoning at the time. Certainly my recollection is that
it was going to be about $25 million. That fed into my decision at the time that was to
me offset ultimately what was going to be a mixed use versus just a purely more
intensive, you know, class A office type of development.
Butler: I struggle from a lot of the same thing. If you look at it from a high level
standpoint and strip away all of the details around it, it sounds like the developers are
saying well look, we signed a bad deal and it really wasn't fair for us so now take, it
looks like after all the rest of the housing is built, maybe $3.9, $4 million give or take
from school construction and give it back to us because we made a bad deal for
ourselves. If I look at it that way, I don't see any way that I could justify it to the
taxpayers of the town. But, I am trying to think of a way that I could and I see one
potential way. I don't know if it is enough to convince myself. The one potential
way is that we spent more over and above what was really called for in the
proffers... primarily that we built the interchange differently for a cost of an extra $3
million plus or minus and the reason we did that was VDOT wanted it that way so
that in the future, we would be able to put in loops and affect the traffic positively
once these roads are completed all the way through and it gets busy and everything
that it is going to be a great deal for the county residents and the Leesburg residents if
we can built these loops. If we built it for the proffers, you wouldn't have an
opportunity to do that. But since we spent an extra $3 million, in the future we will
be able to do that, so that's a benefit to the people that they didn't have to provide that
they did. Then, that gets you part of the way. Then you have to say, okay this is
supposed to be for school construction, not necessarily road construction, but under
Council Member Wright's point, well we really only generated six kids which is not
going to generate the requirement for school buildings. That is a potential way that I
could justify it to constituents. I am not sure I am there yet, but okay, there is
potential.
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Titus: Brian, you know I have been on these boards before. Let me ask a couple of
questions. When is this money paid?
Boucher: When is the money paid? Zoning permit.
Titus: So, have we collected this?
Boucher: The $2.6 million? We did not collect it at the time I think the proffer said it
was due. When we were going out to make sure we were collecting it, we found out
we had missed it.
Titus: So zero has been paid?
Boucher: Towards this. Since that time, Council Member Titus, what has happened
is, they asked for a proffer interpretation and the zoning administrator gave it and said
I think you owe it. They have appealed on a technicality, if you want to call it that, to
the BZA. So this is kind of put in abeyance, this kind of discussion, is a potential
opinion in front of the board of zoning appeals.
Titus: Okay, when did all of this transpire? Recently?
Boucher: We went to the BZA initially in the fall of 2010, somewhere around there.
What was determined was one of the things that the applicant and staff discussed, you
can always go back to Council... because they contended they could ...through the
proffers. That's how we got here.
Titus: What is the status of the AADPs? Are they dead and who declares them dead?
Boucher: I guess I would turn that over to the town attorney, if you want to answer
that.
Irby: The AADPs were originally structured so that they existed for a period of 25
years or so long as the moratorium on city status took place. Well the moratorium
with respect to the town becoming a city expired a couple of years ago, so it is the
town's position that there is no further hold with respect to the county. In addition,
we have gone through and done an analysis with respect to the AADPs to determine
what has been done and what has not been done. Leesburg has fulfilled all of its
obligations under the AADPs.
Hammler: if I may just add, the County does not agree with that interpretation, is an
important point.
Titus: Did they tell you why?
Irby: No.
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Titus: Well, that's great. Well, I mean I understand. Part of this discussion is what is
the county been toward contributions. I have been ... I have understood that the
Council has been told that there is no policy when in fact there is policy. The board
has a policy they adopted in '05, '06, '07, somewhere along like that by resolution,
not an amendment to the Comp Plan that allows these monies to be transferred from
say roads to schools or vice versa. They had to use that policy in three or four cases
as I understand talking with John Merrithew today. Now, as far as the school board
goes, has there been a dialogue with the school board about this issue?
Boucher: No, not with the school board.
Titus: Do you know whether the comp plan of the county or the town has ... if the
town has fulfilled its requirements as far as the schools themselves?
Boucher: Yes, actually and the county has even said that with regard to the AADPs,
we have met the school requirements. They have actually stated that.
Titus: So, I guess the question is where is money going to go once it gets
contributed? It is going to go to the school board, I assume. Or is it going to go to the
town ... is the town going to take the position that the AADPs are over and therefore
you are going to take the money or are they going to give it to the school board.
What are they going to do with it since we don't have any schools to build.
Irby: With respect to the money that is already been paid, the approximately $1.1
million...
Boucher: As an AADP.
Irby: As an AADP, it would be the town's position because of the way the agreement
is written, that money should go back to the county. It is the town's position because
we fulfilled the requirements under the AADPs going forward, any additional monies
go to the town.
Titus: And the county does not agree with the policy or does it?
Irby: I don't know. The county hasn't opined on that particular policy
Boucher: Council Member Titus. One thing, just to clarify. You have got the school
contribution. It is not really in the AADPs. The school contribution is out of our
own town plan, so the money there we would give to the county school board for
facilities in the town. That would be how it should be spent.
Titus: I understand that. I am having a problem with why would you collect money
when there is no place to spend it?
Irby: Because it is for capital facilities.
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Titus: The school board's capital facilities?
Irby: School board capital facilities within the town.
Boucher: Right, it should be spent on capital facilities within the town.
Titus: Is there a guarantee that it would be?
Boucher: We give it to them ... the school board tells us that we built so many schools
in the town, it has cost so many millions, and we haven't collected anything close to
what they have spent on school capital facilities.
Hammler: Isn't the central issue what the original proffer said and the interpretation
of the original proffer that dedicated that money which ultimately resulted in your
interpretation of those proffers, which were voluntary? They were volunteered at that
time.
Titus: I am not disputing that, Katie. I am trying to find out what the basis for some
of this is. I know that there is a dispute about this. I understand both sides of this
clearly but I also understand that the town of Leesburg got a very good intersection.
A nice intersection, much more than was planned when the diamond concept was
adopted for that thing. I think the Council discussed that issue at some length. I
believe you were on the council at the time and I believe the council decided the
diamond was the best use. I am not sure that was the best decision that was made. It
was made and it is done and it is over with, but this interchange is got two areas for
loops that will go in that VDOT says they may want. It is nice for VDOT, but VDOT
doesn't control that issue. It is politically controlled, generally speaking, as to how it
is going because there are several other diamond interchanges on Route 7 now, one at
Ashburn Village Boulevard is one and this one here is the second one. So, when
somebody told me there was going to be a diamond interchange there, I couldn't
believe it to start with and then to come out to look at it, the areas there to put the
loops in, it was kind of a surprise to me. Somebody spent an awful lot of money. I
am not sure that the Town of Leesburg didn't benefit significantly from the extra
money that was charged for that interchange, whether it is $5 million or $13 million.
I don't know the difference and haven't studied it enough to tell you. This was a heck
of a lot of money to put a loop in there aside from the interchange itself not being
required to be constructed by the developer himself, because he didn't generate all the
traffic. It is a dilemma for me, particularly because the school board says it has what
it needs. If they had expressed to us the desire to do something else, then that's
another matter, but they haven't. I think in the next issue, we do this, we should
definitely make that contact with the school board as to what is going on. Because
you know darn well Sam Adamo is not sitting back there on his rear end thinking
about nothing. He is thinking about getting money in. I know him well enough to
know that's what he does. I think there is ... I'm not saying fault. There is obviously
some disagreement, but there is something in the argument the applicant is making. I
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am torn, to be honest with you. I just think what would that intersection be if they
built only what they had to build for their own development. We would have traffic
backed up to Sterling and DC, certainly to 28. Without that, without that bridge, we
would be in deep trouble. Anyway, I have said enough.
Dunn: We chose to adopt county guidelines. We adopted them in part. If the
county allows us to adopt guidelines and they allow us to adopt all guidelines and we
just chose to adopt some of it, does that really preclude us from adopting all of the
guidelines or adhering to all of the guidelines that they have given us the right to do?
Irby: No.
Dunn: So, even though we have been collectors of County funds, we haven't
necessarily said we would be the creditor of funds. We do have the right to go ahead
and do that?
Irby: Sure.
Dunn: How many other projects in town... and if there is bunch of them, you don't
have to give me an exact number ... how many projects in town have we worked on
that we have not collected proffers for schools?
Boucher: We only adopted the school proffer in 2005. So, we have done four ones
since then that actually increase the density. So, before that time, we obtained a
number of school sites in town through the rezoning process, but we didn't get a lot of
capital money.
Dunn: So, you are saying that every other development since that time, we have
collected proffers on?
Boucher: If they increased residential density. If they are adding new units, yeah.
We have applied...
Dunn: We did not?
Boucher: Right, if you had existing units, we don't include those. We had not applied
this proffer to it. One example is Oaklawn. They had some townhouse units that
they were messing with. They did an amendment, but since they weren't adding any
units, we did not apply this to their amendment. They had the right to build those
units, they were just changing how they were going to do it. So, only for new units
and that has only been since 2005.
Dunn: How many more students would this new change that has come before us, are
we going to increase?
Boucher: You mean...
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Dunn: We already know we have about six currently, but with the change that's
coming before us, will we be adding any more new students?
Boucher: One thing I will say here ... I just hadn't checked with the school board to see
how many kids actually have been ... I know six or seven have been pointed out but I
will say this, all we have done is just applied the standard. It doesn't matter how
many additional school kids there would be, we just applied the standard per unit. It
assumes a certain percentage of students per type of unit.
Dunn: So what is that?
Boucher: I don't know the exact standard. I don't know how many students. I
would have to look it up. We have that information somewhere I think in the
original rezoning. I just have to go dig it out. How the percentages were applied per
type of unit. They did it for town house use, so many students for single family
attached. That is what their contribution is based on. I can go dig that out.
Dunn: So for the new proposal that is coming before us, we don't know how many it
is going to add.
Boucher: You mean the one that is on Landbay C? is that what you are talking
about? You mean the 300 units that aren't built?
Dunn: Yes.
Boucher: If they went to 160, I would have to figure that out. It would be a decrease
in the number of school students.
Dunn: Landbay C, is their project or is that someone else's?
Boucher: It was all one project, but that landbay has since been sold off to a different
owner. They are cooperating with this rezoning, but it is a different owner. They are
going to come in with a separate rezoning to decrease the density on that landbay.
Dunn: Now, since the other owner is going to be coming before us, could we not
request or negotiate proffers with that?
Boucher: The issue will come up again because any time you have residential
zoning ... this is unbuilt ... we have this proffer now and it could come up again, yes,
for those units.
Dunn: We could negotiate with that developer for that landbay proffers for schools
should we need it based on calculations.
Boucher: Staff will certainly bring up the issue and it will be up to you all.
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Dunn: So taking Landbay C from this development, how many more students will
they be adding to the system?
Boucher: It wouldn't be any more units ... so we wouldn't be adding...
Dunn: That's what I am trying to get to. But I want to hear it from you. Nobody
wants to hear it from me.
Boucher: That is the $2.6 million that the applicants in this case are saying on their
property.... the proffers apply to both but on their property it is $2.6 million is the
figure but they will tell you that since they are willing to contribute up to AADP
payments on units that are off site, you would decrease that $2.6 million by some
figure.
Dunn: Are they coming in then, with their new rezoning, are they coming in with
less students or less density than they have originally?
Boucher: On Landbay C, it's less. On this nothing has changed. It is the same, they
are not going to build anymore units. 335 have been built. That is all they had the
right to build. They can't build anymore.
Dunn: I had a question then on... this may be related... on Meadowbrook, when we
negotiated with them, did that decrease the density from the original...
Boucher: It depends on how you look at Meadowbrook. Meadowbrook in the town
plan at the time, before the plan was amended was supposed to be three to five units
per acre. The Meadowbrook zoning now allows it to be a maximum of 1.6 units per
acre, so if you ... but the town plan was amended to decrease the density, but for many
years the density there ... and I think what the school board looked at for many years is
a higher density student population in Meadowbrook.
Dunn: How much did we get for school proffers on that.
Boucher: Because that's by right, we will not get school proffers.
Dunn: In fact, all we negotiated with Meadowbrook was basically road
improvements. We didn't get fire and rescue. We didn't get parks and rec. We
didn't get schools.
Hammler: But we didn't approve the rezoning.
Boucher: We didn't approve the rezoning.
Dunn: Negotiated. It was part of the negotiations. My point is that this isn't so
unprecedented for us that we have just never seen anything like this before. We have.
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Council Work Session January 9, 2012
Anyway, thanks for answering those questions. The way I see it, we got the right to
collect and credit. We have got very few students. We have more road
improvements than we have ever anticipated and this isn't completely unprecedented.
I don't see why we can't go forward with the request. Thank you.
Mayor: Thanks a lot, Tom. Brian, thank you very much.
Titus: Madam Mayor, may I ask one question on the ... what happens in this case if
we have a reduction in units from 300 to 160? We have cap facilities that we are
going to request them to construct? Am I correct? Cap facilities that will be paid for
by a proffer?
Boucher: All you can do is make ... under the current proffers, it would be a
contribution. You would pay that schools contribution per unit.
Titus: And where is that money going to go?
Boucher: Again, when we collect it, we give it to the Loudoun County School Board
for spending on capital facilities in the town. Somebody asked is it easy to track that?
Well, again the answer we get from the county is we build a lot of schools in the town
so your money is being spend on those schools.
Titus: That's fine, but that's not what the plan is for. The plan is a plan is a plan. It
can be adjusted and readopted but it's like well ... I paid .... it's no different than what
they are saying. They paid $24 million for this interchange. They didn't plan on
paying $24 million. The school board says well I spent $5.6 million on this high
school or whatever the number is and we only intended to spend $4.6. So, all that
money will go toward the cap facilities in the school board?
Boucher: Technically in the town of Leesburg, is the intent. Schools that they would
build and maintain in town.
Titus: I think I would like to read the policy on that very issue because I don't think
we should be having our AADPs should be allowing the school board to hold us
hostage when we could be using that money too even to benefit the schools, roads,
whatever.
Hammler: Brian, and John, if I may. I am just looking again at the draft resolution
for tomorrow night and given the complexities that Council faced last Council
meeting... there were a number of questions relative to accepting the concept plan
changes versus the two part amendments in Proffer Ten. The way I am reading your
draft it actually says whereas staff recommends approval... that is not how I have
interpreted your presentation this evening. Could you explain to me tomorrow's draft
resolution as it relates to quite frankly that interpretation, because I am hearing you
don't recommend approval as it relates to certainly Proffer ten.
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Boucher: What the draft resolution was and Council can always see things a different
way. So that's if you like it the way it was proposed...
Hammler: But it says Staff recommends approval... that's my question. It says it in
the draft resolution.
Titus: There is another ... in the second draft, you have in case Council wants to do X.
Boucher: I think when you change some of that language and that's an oversight on
my part because what I think we didn't get into last time was a recommendation for
denial too.
Hammler: I don't see that resolution anywhere.
Boucher: It's not in there. We did not give it to you.
Hammler: Because that's exactly what we need to prepare. We have a vote coming
up tomorrow night and that's the sort of in depth discussion that Council needs to
address which is the resolution on the table. So, to the extent that we can get updated
resolutions as quickly as possible, I would appreciate it.
Boucher: We can do that.
d. Form Based Code
Susan Berry Hill: Okay, thank you Madam Mayor and Members of Council.
Welcome, Mr. Titus. It is good to see you again too. The last we discussed form
based code, it was November 14`h of last year, at which staff provided for you some
implementation work that we had done. Just to start from the beginning, Council
adopted the Crescent Form Based District in February of 2011 with an enactment
date of March 1, 2012. That delay in enactment was to allow staff some time to do
some work on implementation issues. We knew that we had to marry up the
ordinance, zoning ordinance with the DCSM and the subdivision ordinance. We also
needed to do a little bit of master planning work to see about our utility planning,
transportation planning, storm water management and so forth to assure that we were
going to get to a point where we felt comfortable enough adopting the form based
code and in the long run that our infrastructure could support that; however, last fall
as we were working on these implementation questions, staff dug in and did
some ... put some pencil to paper and worked on what it would cost in terms of
infrastructure, roads, storm water, utilities. That's what we presented to you on
November 14`h. We came up with some pretty big numbers and Council was very
concerned about those numbers. What amount the town might be on the bubble for
in terms of paying for some of that infrastructure. We assume that there will be cost
sharing to some extent between public sector and private sector on the
implementation of the form based code. We would like to see the majority of that
infrastructure cost coming from the private sector; however, there may be instances
and that's what our analysis showed that there may be times where the town needs to
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step in and pay for some of the road costs to be able to make road connections work
and so forth. What I am going to do is kind of go through where we felt the direction
was after that November 14th work session. Again, we started on November 14th and
we talked about the infrastructure costs. At the end of that November 14th meeting,
Council was concerned about what the infrastructure costs were going to be and they
asked us to do two things. One, find a way to implement form based zoning
incrementally over time that doesn't over commit the town fiscally and secondly,
could we find a way to extract certain parts of the form based code, particularly
building design, streetscape improvements, materials and site design. Focus on those
key elements and could that be done without reliance on a regulating map. As you
remember, the regulating plan is the part of the form based code that shows where the
streets will be built, where all the connections will be made and so forth. So, staff
went back and looked is there a way to implement the form based code without the
regulating map. We have come up with what we call the hybrid approach. That is
what I am going to try to describe tonight. Chris Murphy is going to step in a minute
to help me explain some of the points of the hybrid approach. But, basically that
takes those elements that I just referenced, the site design, building design, streetscape
improvements and uses what we have already developed in the Crescent form based
district... that language and tries to incorporate it into the B -2 district. So, it would be
amending the B -2 district, not coming up with a new crescent form based district.
Now, as we were going to discuss this hybrid approach on November 28th, but it go
deferred a number of times due to heavy scheduled before you ... you had a lot on your
plate so in the interim, staff has met several times with the steering committee just to
bounce the hybrid idea off them, see what they thought about that. They have
weighed in. They met two times, once on December 12th, one on January 4 and they
have some comments and recommendations which we are going to relay to you
tonight on this. But save that for the end of this presentation, so we will get to that.
Bottom line is, there was general consensus that the hybrid could work and that it was
a practical approach to implementing the form based code; however, the steering
committee has some recommendations they would make basically on the things you
are about to hear. So, with that lead in, let's get into the hybrid approach. There are
two major differences from the present form based district. No regulating map and as
the staff was initially proposing this, there was no height increases. We would rely on
the 45 foot height regulations that are currently in the B -2 regulations. That meant
less density. This hybrid takes a standard development as part of the crescent form
based district. We already have that language developed and inserts it into the B -2
zoning district to create a more urban style site layout with mixed use design. The B-
2 was chosen because it comprises most of the area in the original crescent master
plan area outside of the old and historic district and includes areas on Market Street
that were also considered by the steering committee. So, this map shows the
comparative areas. The red shows the crescent form based district area ... as you
remember this is the smaller area that the planning commission recommended to you
for form based code. The blue area shows the B -2. As you can see, it's much larger
than the area that you are currently considering. For comparison purposes, this map
shows the crescent form based code area in blue ... that's the area the planning
commission recommended compared with the green area, which is the steering
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committee area and that compares with the crescent district master plan, which is a
portion of that. Okay...
Titus: Can you go back? I have some questions. Does the green encompass the red?
Or just...
Hill: Yes.
Titus: Does the green and red go together as one?
Hill: The green area is...
Wright: The green encompasses all of the red and additional.
Hill: The answer is yes.
Titus: So green is in addition to the red?
Hill: Yes. Okay. Hybrid zoning incorporates important provisions of the crescent
form based district and it is trying to enable the goals of the master plan to be realized
without the difficulty that we have with the regulating map. That is kind of the
problem child that we had working with the form based code. Okay, now these are
the various provisions, the section changes in the ordinance that we would change to
do the hybrid. So, Chris is going to explain these sections to you.
Chris Murphy: Mayor and Members of Council. Good to see you again. Just before
a step ... go forward with the actual elements here. Again, if you recall the goal of the
form based code is to achieve a more urban redevelopment of this underdeveloped
area. So, what we want to do with this hybrid is bring in those design elements,
specifically the site design and layout, the building design and building materials, and
streetscape improvements of the crescent form based district to the regular zoning
district. So, the first one year, the site design. So in Section 6.4, which would B -2
basically everything .... bringing the site design elements that bring the buildings
forward, minimize side and rear setbacks, push parking to the rear. The more urban
design elements to the form based district to the traditional form based district.
Hammler: This is just a little nitpicky point, but it is really new urbanism.
Murphy: True .... but...
Hammler: But ultimately ... I don't want to belabor the point, but this was based on
the principles of the Urban Land Institute and some of the things that were espoused
relative to what we are achieving but...
Murphy: Sure...
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Hammler: So, that's a different tone.
Murphy: Continuing on ... in Article 10, we would be adding the density/ intensity
standards of the zoning ordinance, building design elements of the form based district.
Specifically, prototype, specifications, types of buildings that are listed there. Of
course, you can get all of these ... recall that the form based district has design
elements, building types ... so we get types of pitch, types of materials, openings and
numbers of doors, locations of doors, windows, etc. So, the specifics of those in form
based code, we would add to the B -2. Right now, the way the traditional zoning is in
the B -2, it just gives you setbacks, building heights, etc. It is basically a box. So, you
get different design per building. Here we have a standardized building design. It is
easy for developers to know what we are looking for. It is easy for them to develop
plans that are going to get approval right away from the town, so we want to bring
those elements and consistent element... a known design that we are trying to achieve
into the zoning ordinance taking it from the form based code. Next, also in article 10
we would bring the building materials which outlines and limits the percentages for
primary materials and secondary materials on the buildings. So, not only do the
developers know what the buildings should look like, they know what it should be
constructed of. Also, going into the streetscape improvements it tells which streets get
what improvement including the aisle width, sidewalk width, street trees, etc. So, the
parking... with the hybrid what we do is combine zoning ordinance section 11.45 with
the form based code to ... one mixed use parking calculation. Again mixed use
parking takes advantage of variations on demand for parking by time of day and day
of week and results in fewer required spaces and we have the overlap of some uses
during the day and some using at night so you don't have to have ten for this guy and
ten for this guy, they could use the same ten spaces ... so reduction in spaces. Also,
what this would do ... the hybrid would establish a maximum number of spaces
allowed so you wouldn't create parking for a single day of the year. You look at some
of the shopping centers around time and for the majority of the year, except for like
Christmas week, they have oceans of parking around the box. The form based code
or hybrid would try to minimize that. Only put the parking in that you need to and
that is the maximum you are allowed versus the standards are now, the minimum
required parking spaces. You can go beyond that if you want. Dealing with
landscaping, the hybrid would include... reduce or eliminate the requirements for
permanent parking lot landscaping, interior parking lot landscaping, buffers and
screening of some sort. Again, suburban design is based on separation of uses, thus
requirements for larger setbacks, screening between uses. Urban design or traditional
urban design minimizes or eliminates the need for separation or screening and this
takes advantage of the hybrid modifies the landscaping requirements to reduce them.
Then, one thing we are doing in the B -2 is we are adding townhouses. Right now, B-
2 is a commercial district, of course, but with special exception, a developer could ask
for multi - family residential. Under the hybrid, we would add single family attached
or townhouse units to the district in order to achieve a mix of residential so instead of
just having multi - family across the board, we could mix up townhouse and
multifamily. Then with the master plan, as mentioned the hybrid does not
incorporate the regulating plan with the zoning ordinance. Instead the grid street
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network would be achieved through the town plan. Since the crescent district master
plan currently incorporated into the town plan does not extend to the entire B -2
district... remember those maps that Susan showed right now, the area that we have
adopted is a funny portion of the B -2. It is also a small portion of what the crescent
district master plan incorporates. The town plan needs to be amended to extend the
grid of streets, picking up where the steering committee left off. Again, the green area
is where the steering committee went to and they actually devised a grid within that
green area but we want to go out to the blue outlined area, which is the B -2 district, so
we would extend that grid beyond that point. So, that's an element that will happen
under the hybrid. Again, for commission purposes, this is also incorporated into your
staff reports is the Harrison table. What the crescent form based district does and
what the hybrid still does. Those things that don't match up, with the extension of
grid, again we need to work on that a little bit. The building height is different. You
can go up to 70 feet in certain portions under the height map, another regulating map
for the form based code; however, under the hybrid you go back to the 45 under the
B -2 regulations.
Hammler: Chris, why did you specifically isolate that. Specifically given if you will
kind of the whole guiding philosophy in form based code is obviously the form and to
the extent that we clearly are anticipating creating incentives for brownfield additional
development, where and how could the up to 60 feet be an incentive to be able to
achieve what we are trying to achieve, particularly given that we are asking now
developers to pick up some of the costs associated with the type of development we
are interested in.
Murphy: We have been working on this, as a matter of fact when I turn this over to
Susan, she is going to talk about how they are coming up with a way to incentivize
increase in height beyond the 45 feet.
Hammler: when you said no height earlier ... I thought well that's interesting... Got it.
Thank you.
Murphy: There are some messy issues and again with the increase that we will talk
about, we can get into right now ... it's 100% with form based code and 25% with the
hybrid. Again, we are going to talk about incentivizing, increasing that. Another one
is the traffic study. Right now, under form based code, we would not require a traffic
study, but under the hybrid we would. Now, we also spoke and the steering
committee has some recommendations on this element that also Susan will discuss
when I turn this back over to her. We still have the threshold trigger for when this
applies. We have open space requirement now. Under the hybrid with the residential
developments and also for the residential, no depth. Under the form based district,
single family detached, townhouse, and multi - family were by right, but currently
under the hybrid as drafted it would be a special exception for townhouses and single
family detached. Again, the steering committee suggested that they be permitted by
right or we apply certain percentage by writing others by special exception. So again,
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another element we will be more into detail on. I will just turn this over and that
concludes the portion of my presentation. I'll turn it back over to Susan.
Hill: So, as Chris was saying, we estimated under the crescent form based district, we
could probably see about a 25% increase in buildable area due to an increase in the
building envelope for each parcel. So we felt that was a hybrid that we were
estimating a 25% increase and that offered some incentive for developers to redevelop
their property, but maybe not cause the level of concern in infrastructure
improvements. So, these are the development incentives, then. No rezoning. We are
trying to ... for residential units. It will go directly to special exception review for
residential as opposed to legislative rezoning. There will be predictability in time
savings because the form based code hybrid approach contains elements of the
crescent form based district and a developer knows up front what form of
development is required and this minimizes needs to redesign submissions. So, the
town incentives to adopt the hybrid plan are that it would be _ development. There
would be less potential for public infrastructure investment because we feel the density
would not require so much investment in infrastructure. There would be more
flexibility with respect to the road systems not having a regulating map but your
reliance on your planned network is your reliance on your plan to provide that road
network, but it does not mandate a road network and lastly, we anticipate fewer legal
challenges without reliance on the regulating map.
Mayor: Susan, that last sentence under that last category was the eminent domain
issue. Do you want to address that just a little bit?
Hill: Yes, I sure do. I think one of the game changers... there are two game changers,
I guess in looking at the crescent form based district. One was putting the estimates
on what the infrastructure would cost. The second was there is an amendment at the
state level. It is a constitutional amendment that would severely limit localities ability
to exert their power of eminent domain for economic development purposes. This is
a big concern to the town. Of course, this is one of the items that was included in our
legislative package to flag for our delegates to see if we could change that, but we
don't know what will happen with that. There was concern on the part of our town
attorney as well as staff if we have a regulating map and a developer cannot make
those roads for whatever reason... they cannot get the right of way to complete the
road network, cannot get the easements to do so, if the town had to step in and do
that under this proposed constitutional amendment that might really be a problem for
the town. Jeanette, do you have anything more to add to that?
Irby: Well, because there would be no eminent domain for any type of economic
redevelopment and certainly any one that we were attempting to acquire right of way
for to build out this area could argue the purpose of it is economic development.
Quite frankly, you can make that argument for any use to improve right of way or
extend utilities. Why else would you do it unless it was to improve economic
development? So, that is a concern of the town's right now with respect to that.
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Martinez: The current court case that would fall into Cornerstone, how is that ... is
that going to affect anything we do with this form based code? If we ended up having
to follow what Cornerstone is having to do?
Irby: Not in... if the form based code is adopted in its present form without being
rescinded prior to March 1, it could because then it all becomes ... let me take it back...
No, not in its present form. Cornerstone impacts properties who have a proffered
rezoning that someone is trying to change without getting the signatures of all of those
who were involved in ownership of that land as part of the original concept plan. I
don't see that will be a problem with respect to this form based code or the hybrid
form based code. That has to do with proffered rezoning. The only proffered
rezoning in this area is Harrison Park. I don't think there is any other proffered
rezoning in this particular area. But I think we all acknowledge that Harrison Park is
going to have to change. It is under one owner, so they don't run into that issue.
Isn't it just one owner for Harrison Park?
Hill: Two.
Boucher: I would say this ... what we are proposing for the B -2, the larger, it would be
eight proffered rezoning, but actually nothing we do here will apply to a proffered
rezoning, by the way because they have their rights.
Hill: So, it's changing ... the hybrid is just changing the B -2 district, so it would not
change the proffered rezonings.
Irby: So, there are eight.
Martinez: Currently, what is there, but we have done in the past would impact that?
Were there any proffered rezonings that were done in the past that this would change?
Irby: No, and the time limit has run on those that have been done with respect to
legislative decisions. So, those are fine. There is a 60 day appeal after the Council
makes their decision. The only one that currently we are battling is the Cornerstone
issue.
Hammler: Just a quick question. Is it fair to say that there won't be grandfathering
associated with the constitutional amendment and if so, why are we even discussing
this tonight if we won't know if we can _ anything until after we understand what
the outcome of that is?
Irby: Because we have a March 1 implementation date with respect to the form based
code so we do need to do something one way or another to prevent those from getting
vested rights with respect the form based code as it stands today.
Hammler: Even though we may have to reverse something based on...
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Irby: We don't to make it complicated for ourselves when there is no reason to even
fight that battle. There is no reason for us to continue along with an implementation
plan if Council finds that the modified form based code is better suited product for the
needs that we are trying to do. We don't want to create an additional issue with
respect to not proactively determining that we may not be doing form based code.
We don't want to have people vested in form based code if it is something that we
may not be doing. There is no reason to create that.
Hammler: So, if I can just summarize, we have a March 1 deadline. But we feel once
we find out what the outcome is of the constitutional amendment even though we
know there is a lot of people energized to ensure that it does not pass, but if it does,
how will that impact whatever it is we decide before March 1?
Hill: I think we are saying that given the constitutional amendment issue that is out
there ... we don't know how that is going to play out, but staff's opinion is that the
hybrid approach... there is less concern with the constitutional amendment than there
is with the crescent form based district.
Hammler: So it might even be viable even if that passes.
Hill: The hybrid.
Hammler: The hybrid passes, it would not be impacted by the constitutional
amendment?
Irby: It may or may not be; but whatever the town wants to do going forward. If the
eminent domain language passes as it is presently written today, a landowner could
make the argument that the only reason you are improving this road, building this
road, running the utility is for economic development and they are going to be able to
make that argument. The outcome of which, I don't know the result of, because that
is going to be a question for the jury.
Butler: But we could do that regardless of what the zoning is. They could make the
same argument. I don't think the form based code, hybrid form based code or
standard B -2 zoning is going to have any effect whatsoever. If we are going to build a
road, they can still argue that it is primarily economic either way.
Irby: today as it stands, they don't have that argument to be compensated for. That's
the...
Butler: Unless the constitutional amendment passes. They will have the same
argument regardless so I think it's disingenuous to say that the hybrid approach is less
risky than the other one.
Hill: Yes, it comes down to the regulating plan. If the regulating plan mandates
those roads and a developer cannot build them to do his project and has to ask the
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town to step in and help, then the constitutional amendment is a problem. That
becomes a problem for the town. Under the hybrid approach, because it is a planned
network. I mean we are going to try to encourage those connections, but we are not
mandating, so there is a difference there. Does that make sense?
Hammler: It does make sense.
Mayor: I am going to let Tom ... Tom will go now.
Dunn: Where is the...
Irby: That is from the Council ordinance. Council put that date on it.
Dunn: So, can the Council change that date? I have got quite a few questions. You
will have to excuse me. I will say this, I am for form based code. I would like to see
it everywhere. I don't want to see it implemented the way that it has been presented
to us, as you all probably know. I would be more in favor of a hybrid approach and I
guess the only thing ... just some opening comments on that is ... we had the
opportunity to write this the way we would like to. The state has given us that right.
Districts. Who made the districts in Leesburg? I don't think God passed anything
down to Charleton Heston and said these are the districts in Leesburg as he did with
the ten commandments. We get to write those districts, so when we are saying we are
going to make it the B -2 district, okay why can't we make the B -2 district something
else. So, we have the opportunity to make this ... I would like to consider how can we
get to yes on this instead of saying we can't do this. Well, why? Because we said we
can't. Well, wait a minute, if this is something we want to do, we can write this the
way we want to to make it happen. So, March 13 is not a deadline for me. We just
need to change that then. I think, too, to get to this point, we have been dished up a
plate of food that we didn't like and that was called form based heavy in the crescent
district. When people were saying here is what form based code is, how do you like
this in other places in town. Well, I don't like it. I didn't really like it that well in the
crescent district, I sure don't like it in B -2 or H -2 or outside the bypass. Can you give
me something lite? I am trying to lose some weight, it is a new year and all that, I
have got to go on a diet. So, if we were presented with ... we would like form based
code to be plan by which we can have the design of buildings look the way we would
like them to be in Leesburg and that's our starting point. How much infrastructure is
involved in just saying we would like the buildings to look a certain way? Very little,
correct? Next to none. No issues with the proposed constitutional amendment
whether it is even going to happen or not. It is a nonissue because also trying to get to
is, we would like our buildings in Leesburg to look something consistent with the way
the rest of the town is. Maybe that could be our starting point, instead of form based
heavy, which has been dished up. Form Based Crescent District. Maybe we can
move that as the years go on. One, I would just like to say is can we look at those
things that are stopping us from moving forward and say is there a way around that
and if the issue is well yeah, we just have to write ... we, Leesburg, we just have to
write that a certain a way to make that work, well then let's look at ways to make that
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work. Now, to get to some specific questions. Under, on your page 2 of 12. You
have got A. I guess I wrote down where are we talking about and I guess what that is
is your map that you have on page four. And my question is why can't map include
all of Leesburg. I suppose that same concept that I have had of you know... form
based lite is outside the bypass. In other words, if you have an outside the bypass and
an inside the bypass and you have the crescent district. So, it goes then to if you... a
comment that I had about your B -2. On page 3 of 12. It looks like you are looking at
one control the grow, the density but you are still trying to streamline the process. Is
that correct? Am I reading that correctly? Okay. So, good, we don't want to have
runaway growth, but we would like to streamline the process to have an incentive
there. On your table on page 5 of 12, here is where you all were going with your
current program, but then you had your hybrid program and it looks like you just put
yes or no. I would like to have something considered here and that is if you look
at ... again it goes back to the opening this up more to just what you have on your map
and say well is it inside or outside the bypass. In essence you go down the list here
and it is somethings you consider... building height. Inside the bypass, keep it with
the 45 feet. Outside the bypass, we already have buildings up there on Fort Evans
that are five stories, six stories high. Why not go ahead and allow outside the bypass
increased building height. We have already passed that, why not go ahead and do it.
We already have buildings out there like that. Traffic study. Yeah, just inside the
bypass. Outside the bypass, I don't need it. I don't need it necessarily a traffic study
outside the bypass. Same thing goes with the next few items. The parking behind the
building, building built to the street. Those are things that are inside the bypass. I
don't need them outside the bypass. Building design materials. That's everywhere.
That's what I see as our goal for form based code. What's the form of the building.
We would like to have that form be something that is conveyed throughout town, not
just in certain areas. The density increase. Inside the bypass, 50 %. Outside the
bypass 25 %. 1 might have that backwards, actually. Then the next couple of items.
Those are inside the bypass. Streetscape issues. Because that's more of what we are
looking at trying to achieve in our gateways. Open space required. I just put down
that is more outside the bypass, not just necessarily where you have it where yes it is
residential. Again, giving you all a couple of more zones to deal with other than just
saying we are expanding this just to the bypass in essence with your map on page 4.
If you notice that really is just saying we are looking at our eastern bypass. Our
eastern/southern gateways inside the bypass, but we are still ignoring the
development... where we had most of our development, which is actually outside the
bypass is still basically going to be a free for all we don't care the way the
buildings... but can I say yes we do. That is what I would like to accomplish with this
is first start with the basics of building design and then build on that and not the other
way around. As I have said, we are dished up a very heavy plate of food that was
hard to digest and I think if we look at this as a lighter meal, something we can
handle, yeah, we can all fairly well agree that we would like buildings to look a
certain way. Let's start with that point. Let's look at ways of making it happen. I do
like your comment that you have on page 6 of 12 in about the middle of that
paragraph because hybrid approach will allow some increase in density but less than
the other approach and less impact on the infrastructure and I think that's really a key
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point. So, not as many questions. Mostly comments. I did have some questions
here. On the paragraph underneath your table on page 5 of 12, there is a paragraph
here. I wrote down why couldn't we negotiate off site road and school proffers. Why
couldn't we still negotiate that? Could we? I mean is there anything... what legally
are our boundaries? What things can we legally not do, keep those in consideration,
but then look at those things that we have written the book on and say hey we can re-
write this book any way we like.
Irby: With anything ... the only way to negotiate proffers is if we are doing something
that is not allowed by right, so to the extent that you increase the by right footprint
that reduces our ability to get proffers.
Dunn: Okay, so it's something that we probably need to sit down and really need to
look at say what things we would like to have by right, what things we would like to
negotiate. I think that one of the driving factors that I have gotten from this ... right
here, from staff, from council, I think the thing that has held us back from really
moving forward and dishing up this heavy plate of food is loss of control. We saw
form based code as being something that we are going to lose control because
everything is going to be by right and that scares us. Well, if we can look at a way of
making a balance here that we still keep some of the control, make it a benefit to the
development community and give us the town that we would like to see instead of
continuing to have development going on all around us over the last three or four
years we have been working on this ... six years and we still have buildings that are
going up that we have no control over. So, I'd like to see us move forward in hybrid
fashion. I don't want to throw this whole thing out. I would like to see it move
forward and hopefully we can. With that, I am going to depart with hot blue band,
cold koosh koosh, come on Tigers, push, push, push. I got a national championship
to watch and I know this isn't going away.
Hill: Should I go ahead and finish, Madam Mayor, or...
Titus: I just want to say, I don't know a darned thing about form based code except
what people have told me stay the hell away from it. If you have got it, you got it. I
think what Tom says, some of it has got some real good points to it. I want to remind
you of one thing ... when I was on the Council back in those days, the bypass was
nothing outside there. So, don't forget that because there will be another bypass or
something else and you have control inside of.
Dunn: Right now, that's what I am saying. We don't really have control...
Hammler: so, to summarize, I appreciated your points as it relates to kind of next
steps of Council ... it almost sounded like to some extent, if you had a magic wand you
would create a historic district overlay for the entire town versus what may be ... what
is being presented here which is a zoning area which has the benefits of articulating a
set of incentives to, I think, achieve what you are trying to achieve with this lighter
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version but ultimately, I am just curious, what and how can you help us determine
what the next action item is? Are you suggesting that we consider...
Dunn: One, remove the caps. Remove those restricting things March 13"'. Remove
those dates that we feel we have to adhere by.
Hammler: Okay, so that's helpful.
Dunn: Give us time to work on... if it's the desire of Council, to work on what design
elements we would like to see outside the bypass. Are we willing to ask for design
elements from developers.
Hammler: But those aren't enough that have been outlined here relative to...
Dunn: We don't have this ... hybrid approach does not have it, correct.
Hill: It is proposed for the B -2 district, which is inside the bypass.
Dunn: Right now, we are seeing outside the bypass is open season.
Hammler: The rest of the town is not...
Dunn: So I would like to see some design elements outside the bypass and then
design elements and potential streetscape inside the bypass.
Hammler: So, you want to keep working on this hybrid approach and possibly
expand the boundaries?
Dunn: Yes.
Mayor: Thanks a lot. Go enjoy.
Dunn: Go Tigers.
Hill: So, in looking at the hybrid, there are some points here that we should make
that are less incentives for developers to pursue the hybrid as opposed to the present
form based district. One, initially we are proposing that there not be a height
increase. We are suggesting also that we look at providing a little more open space
for residential projects. Right now, the crescent form based district does not include
that. We suggested that perhaps traffic studies should be required. Lastly, that a
special exception be required for residential uses, which is departing a little from our
initial goal of trying to streamline the process. Okay, so that's a good segway into the
steering committee input. They looked at the hybrid proposal and were generally
supportive and saw that the hybrid could be something that is practical approach to
form based zoning and a good way to may be get some more redevelopment and infill
development, but they recommended some refinements to that. They said the biggest
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issue is that there is not enough incentive in terms of density to get people interested
in redevelopment in the crescent district. In other words, 25% increase that we are
estimating here is not enough. They suggested that there should be a height increase
and particularly let's look at what is in the crescent form based district ... up to five
stories or 70 feet and said that we ought to be looking at that for at least those
frontages along Catoctin, Harrison and East Market. I do have copies of this
powerpoint that I can hand out to you after the meeting. Secondly, they felt very
strongly that we ought to stick to our goal of making this an administrative review,
not a legislative review and that we should not be asking to have special exception
review for residential projects. They noted that the density should high enough to
justify the cost of the development and they were really concerned about structured
parking and that the density has got to be there if we want to ever see more projects
with structured parking. They wanted to ensure that there was an adequate mix of
uses and they think we ought to consider requiring non - residential on the first floor.
Another point that they made was that there should be no traffic impact analysis and
we talked about this quite a bit. The staff was concerned that if we pursue adoption of
a hybrid approach that we are not going to be getting that information on a regular
basis like we do legislative applications. Their argument was those traffic impact
analysis cost the developer anywhere between 10 and $30,000 per study, maybe more
for bigger studies that a lot of times what they do is just build on repetitive
information that the town should already have. One of the suggestions that one of the
members made was if the town is serious about this and wants to get behind
redevelopment, one of the things that we could do is underwrite a traffic study done
every like two years or so in the crescent district area to be monitoring what the traffic
impacts are of development and we could get developers who make applications like
plan applications, make a part of that towards the cost of doing periodic traffic
studies. The committee felt that was a kind of reasonable approach, something that
merited...
Hammler: Staff can't cover that with our staff expertise?
Hill: Internal traffic analysis? I'm not sure. I have to get Calvin to weigh in on that
Hammier: A full time person whose job it is to do that.
Hill: If we are interested in pursuing this hybrid approach, that's kind of the question
here tonight, then we would look into that further. The steering committee also
suggested, remember that they did a test case on the Virginia Village Shopping Center
and on the McDonald's site to kind of look ... we did a pro forma on it to see if the
form based district, if it would work mutually. They are suggesting that we do this
again under the hybrid approach. So, once we get some parameters in draft before
that, we get it together, we run a pro forma and the steering committee, I think would
offer to do that. We would probably want to look at it from the town's perspective as
well in terms of budget if there is anything required in terms of utility relocation or
what not. So, test case. They recommended that we do that. Then this is just a
comment. They suggest ... they pointed out that we need to look at the long term
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opportunity cost of not doing any type of form based zoning in the area. That there is
a cost there of doing nothing and that should be compared with some of the costs of
actually pursuing this. So, they are just trying to say let's look at the whole balance
sheet in terms of what our opportunities are. The last point is that the regulating plan
is not essential. We can do this with the comprehensive plan, the crescent district
master plan and revising the road network in that plan and using that as a guide as we
work with the development community on the projects there. So ... conclusion. Both
the staff and the steering committee agree that the hybrid approach would benefit the
redevelopment of the brownfield areas in the town while avoiding some of the
practical difficulties of implementing the regulating plan under the form based code.
So, timing for adoption of a hybrid plan ... there are a number of things that we would
note that we need to do. We need to look at those provisions in the crescent form
based district that we talked about... the architecture, site planning, streetscape
provisions in that and see how they fit into the B -2 district. We would also
recommend that we engage some of the property owners in the B -2 district. We
haven't done that.
Hammler: And how would you do that? Because that was my question. What
would you propose in terms of that dialog?
Hill: We could do a number ... I mean we could strategically look at property owners
that are certain types of businesses ... I am thinking of car dealers and try to have an
input session or an informational session with them to explain the hybrid and go over
it. We could look at the B -2 area in terms of geographic areas and hold some input
sessions and education sessions with them to go over what the hybrid is all about,
what opportunities might exist under that. We could do a number of things in terms
of input sessions and certainly we could use the web as a tool to help educate the
community as to what we are looking at in terms of a hybrid. I haven't fully
developed ideas around this, but we just know that we would recommend that
too ... that be part of the next steps if you chose to go with the hybrid approach. We
would probably also want to continue to engage members of the steering committee if
we look at the hybrid and get their input onto the different things that we would be
proposing with that. The last point on this slide is we will need to look at the town
plan specifically because of the master plan road network and make some changes to
that. So, there are a number of options here. What we are asking the Council is some
further direction on where you want to go with this. If you like the hybrid idea, you
can direct staff to go forward with that. What we need to do also is get direction to
rescind the crescent form based district that was adopted last February because that,
as Jeannette mentioned earlier, goes into effect March 1. So, to do this we need a
response fairly quickly on this because of the advertisement restrictions for the public
hearings and so forth. We would have to go back through the planning commission
and the town council through the public hearing process, just like we did to enact the
crescent form based district to rescind. So, if you were interested in the hybrid
approach, moving forward with that, we would ask you to give us direction to do that
and then we could come forward with a scope and tell you what we are going to be
doing on that. We would also need direction to rescind the crescent form based
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district. That's option 1. Option 2 is to forget about the hybrid, stick with the
crescent form based district and extend the effective date from March 1 to maybe no
date...
Butler: Why would we want to extend it for option 2?
Hill: Because we would still need to make some changes ... to implement the crescent
form based district we would need to make changes to the DCSM...
Butler: But you have been working on that for a year, so I don't know why we need
to extend the deadline.
Hill: Because we ... I think some time has slid from when we initially had the
November 14`h meeting where we got some pretty serious concerns we felt on behalf
of Council members moving forward with the crescent district.
Butler: Well, we will get to some of that in my comments, but let's move forward.
Hill: So, that's option 2. Option 3 is do not proceed at all with form based zoning. If
Council feels like we should not be pursuing this as a tool to revitalize the crescent
district, stop further work on it and rescind the crescent form based district. So, those
are just three generalized options available to the Council and staff is here to answer
questions.
Martinez: Well, my concern is that we keep going from form based code, form based
lite. Everybody is talking about all these different changes and we can't seem to make
up our mind in which direction we want to go. I support the form based code
strategy, but it reminds me of we just keep changing our mind. I would like us to
come together with something that we all can support. I would love to support form
based code. I would love to support whatever Council agrees to, but until I think we
get a consensus, I think we need to slide the date because I am not feeling very
comfortable about how we keep changing things. I don't think we have a ... I don't
have a good feeling about ... I don't mind the hybrid. Let me first say that. It's just
that what happens if somebody on Council decides well I don't like the hybrid, let's
do something else. Are we all going to stop everything and change our mind again?
We need to stick with something and stop all this going back and forth even though
some of us may not like it. It is better than doing nothing. We have to find out what
we all can agree to to move forward. I like form based code. I like the concepts. I
like the fact that it reduces the bureaucracy that a lot of developers have to do
through. We may lose the ability to gain some proffers, but we also on the other side
of it, we get developers who now see an incentive to come into town and do some
development. So, that's just my editorial. As far as any particular comments about
the hybrid, I think what I want to do is sit down with my planning commissioner and
maybe a couple of others and get their opinion of which direction we should go.
Because, as you said if we are going to move forward on this, we are going to have to
have public hearings. I would really like to see us sit down with the planning
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commission and kind of get a consensus on what everybody agrees to in maybe a joint
public hearing and get it all done because I am not looking forward to spending all
these public hearings on form based code that we are not going to accept. We have to
be in consensus with the planning commission on which direction we are going to go
because I have heard some really differentiating views from the planning commission
and others on which direction we should go and until we can ... what I would hate to
do is sit there and say well okay we all agree to the form based hybrid and then the
planning commission says that's not what we were looking to do. I want to talk to
some of the planning commissioners and staff because I really want to ... I don't want
to just sit on it. I want to figure out what are we really going to do.
Wright: The first thing I wanted to do was thank the members of the steering
committee. Susan and I have been kind of debriefing after their meetings, have been
very impressed with the level of participation from that group. We have had really
good turn out and they have remained very much engaged after they had handed this
off some time ago and to be able to reconvene that group and have such good
participation is very much appreciated. So, I wanted to get that out. A question on
kind of the relation to the town plan. So, as we did the master plan for the crescent
district, we adopted that chapter, if you will, into the town plan. The kind of follow
on stuff was the form based code, which what we adopted was smaller than the
crescent district and then we have this hybrid, which goes back to bigger... the
question I have is the relation to the town plan. So, with the crescent form based
district that we adopted, the town plan and that district are not consistent. Is that a
fair statement?
Hill: That's a fair statement. The crescent form based district, the zoning district is
smaller than the crescent district master plan area, so it would implement those
policies in the plan just for a smaller area. The hybrid area what we were suggesting
is just use the B -2 district because it is there. We do not have to create a new district
and that encompasses the crescent district master plan area and then goes beyond that
a little bit. So, would we need to amend the crescent district master plan to broaden
that area? We might want to look at that. As a starting point, we would need to look
at the transportation element of the plan at minimal.
Wright: And that helps segueway to my next question. The thing that got us all
uptight, if you will, was the presentation back in November talking about the
infrastructure costs and primarily the costs created by the regulating plan and the
prescribed locations for the roads and fuel farms and other things that those prescribed
locations ran through. I guess what jumps out at me when we look at the regulating
map with that road network and then we look at the town plan with that road
network, we are still fairly ... when someone is coming in, we still say town plan says
build the road, build the road. I guess what I am wondering is how are our
infrastructure challenges reduced by doing the hybrid approach and relying on the
town plan for transportation as opposed to the regulating map for transportation?
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Hill: Because there is more flexibility in working with the developer on locating the
roads. The regulating map says it must be located where it is shown on the regulating
map with the exception of an offset of 50 feet that the zoning administrator can rule
on. If it is a planned road shown in the comprehensive plan, the crescent district
master plan, staff looking at a site plan can work with the developer to try to get the
connectivity that is in the plan; however, if there is a problem with the alignment of
the road working with adjacent property owners or whatever, there is that flexibility
to say it's not going to be exactly as it is in the plan. So, that's why staff is a little bit
more comfortable with that approach that we are not dictating where those roads go
and then setting ourselves up for well, I can't do it. I can't develop my property, so
town what are you going to do?
Wright: So, with the hybrid approach, if we take the hybrid approach that you have
got and address some of the incentive items that the steering committee highlighted, is
the hybrid approach... did we get to the point that the hybrid approach seems to
fundamentally capture what the crescent form based district captures less the
regulating plan with the roads? Is that a fair observation?
Hill: I think the consensus of the steering committee and staff is pretty much there
too, we can try to use the hybrid as a tool to implement the crescent district master
plan that it will help provide some incentives for developers to redevelop in the area,
but not complicate things with the regulating map.
Wright: Okay and then I do, and John this is one I want you to take note of
regardless of what happens here. This traffic impact analysis thing. I know there is
an internal fight within the organization about it. I have heard this quote said, you
know we ask for the traffic impact analysis because we want to get the numbers. We
kind of know what the impact will be. We want to get updated numbers. There are
these little things the town owns and they are nailed to the street and we get numbers
every day ... the little talk back signs get numbers. If we want to get numbers we have
at least one, if not two people who work in the traffic management area that can
capture numbers so we need to stop using what is going to be a relatively minor
impact as an opportunity to capture numbers. So, the traffic impact analysis when we
are talking about small redevelopment sites kind of flags something that we need to
have an internal discussion about, what we are really looking for. I have no problem
doing a traffic impact analysis on something large or something that is significant that
we don't know what the road patterns are, but as we all know from seeing when an
individual that is bringing in an application does a traffic impact analysis, you can
analyze those numbers anyway you want, but I don't know that is getting us a lot of
return, but asking a small site to do a five figure cost to then tell us whatever they
want the numbers to tell us is not getting anybody a benefit, so I highlight that
specifically. I think we definitely need to be mindful of the incentives. I guess the
other incentive under the hybrid approach that I didn't hear highlighted as much ... I
think they touched on it, but one of the key aspects of form based code is kind of the
stick, if you will, is make the building look like this. We don't care as much about the
use. We care about the look and feel and location of the building. Then, the carrot is
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if you meet these criteria, you are good. You don't have a lot of extra steps. There
seemed to be the addition of some extra steps within the hybrid that I was concerned
about. So that's my observation. I guess on the logistics side, I think it's staff's
position. I know that John you and I have talked about this ... we are not going to be
ready on March 1, so regardless, we would need to move that hurdle. So I am
guessing that's a process that is going to have to start fairly soon, like you would need
a direction tomorrow. If, and this is not like us ... if we are not sure what direction we
want to go, can that public hearing be advertised such that if we go with keeping the
crescent form based district and we are simply extending the day is that kind of one
thing we can do as opposed to simply rescinding the crescent form based district and
then there would be a separate initiation of doing the hybrid because I assume
that's ... in action that we would do is if we are going with the hybrid is we are going
to rescind the crescent form based district. If we are going with crescent form based
district, we are going to extend it. I am just wondering, do we have to make that
decision tomorrow or can we advertise a public hearing such that we are allowing
ourselves the options?
Mayor: Let me see if I understand what you are saying. Break out the extension vote
from any other vote. Is that what you are saying?
Wright: What I am doing is trying not... if council doesn't... we may know where we
are at and we may want to go with the hybrid or we may just want to stay the course,
but if we don't know where we are at, you have got to advertise for something ... I
don't want us to get to the end of that advertising cycle and have Council not
prepared to adopt what we advertised.
Irby: Right, so this would be my recommendation. If there is enough folks on
Council who want to continue with the regular form based code plan, then we just
advertise an extension. If there is enough doubt on Council about whether or not
they want to extend it, I would recommend that we go ahead and start the process to
rescind it, and we can concurrently run ads to start initiating the hybrid approach but
I think they should be kept separate. I'd rather run two ads.
Wright: That also sounds like we have a consensus of which way to go, simplify it
and do that. I just want to make sure we are thinking out loud.
Boucher: The way you would advertise it is to either rescind or extend the date,
which is really ... you could do both of those, rescind or extend.
Irby: I personally wouldn't want to do that. It doesn't mean that you can't reinstate
it. But the thought is if there is not enough interest in continuing with it, then just
rescind it. I think we only extend the date if there is interest in continuing it.
Butler: Do we have to have the date we are going to extend it by?
Irby: No.
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Butler: Okay, then why don't we just say extend the date and then we can extend it
for four years if we want to and then rescind it later.
Irby: There is a question of whether or not you are creating some sort of vested right
because we have enacted this ordinance and we have just delayed the date of
implementation and there has already been letters sent indicating that they believe
they have some rights even before the plan has been implemented and I don't... that's
a question that is not answered in Virginia law and I don't want to be a) the first to
answer it.
Butler: We have practice at this.
Irby: I know we have practice, so to the extent that no one has actually put in a
formal application to test it, we are not sure we are all in with respect to this CFBD,
then let's just go ahead and rescind it and start the process to initiate something else.
That's my two cents.
Hammler: Just to confirm, you would suggest tomorrow we do this action, which
would be...
Irby: You need to do something tomorrow.
Hammler: ...rescinding if it is the will of council, the existing form based...
Wright: Initiating a public hearing to rescind.
Hammler: Say that again? Initiating the public hearing to rescind...
Wright: Right, we are not deciding to rescind or extend. You are starting the public
hearing process because it's...
Hammler: There, which I guess is really the essence of the point you are making,
Jeannette. You are suggesting that we break that out and not concurrently in that
advertisement also if there is a will of Council initiate a concurrent public hearing to
initiate the hybrid?
Irby: They are separate ads. You can have them on the same day, but they are
separate public hearings.
Hammler: They are separate?
Wright: The hybrid won't be ready.
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Hill: The resolution that is before you that went out in your packet, there are two
steps. One is, if you like the hybrid, direct staff to go forward with developing the
hybrid. We don't even have...
Hammler: We never even communicated to the community short of the fact that
obviously we are having this discussion publically that you are doing that. I guess
that is where my disconnect is. To me, it gets back to Marty's point. It is very
confusing from a communication standpoint. Oh, we are not doing it anymore.
Butler: That's what public hearings are for.
Hammler: No, that public hearing is just on ending form based code, not the fact that
it is being combined with the fact that we have gone through the process. We have
learned information. Now we are going to assimilate that information and have a
better approach, which is this. To me, that would be confusing. Is it possible, as early
as tomorrow, to align whether its side by side ads, but to communicate in a seamless
way that we are also concurrently opening up ... staff will be researching if there is any,
at the appropriate time, when ready the form based code public hearings?
Irby: The dates won't be set, but you can certainly run an ad to run adjacent to the
public hearing of a rescission of the form based code that you are now beginning a
new process to initiate input with respect to...
Hammler: Well, I would appreciate that verbiage as relates to a possible action of
Council.
Wright: So communication process. I'm done.
Hammler: My only kind of more general question is ... as I am thinking through when
and how you begin to engage the business community because to me that was the
biggest issue. How would you articulate to say a car dealer on Catoctin what the
benefits are of the hybrid approach should he or she want to do a redevelopment of
their existing property? How would you begin to describe the benefits to a car dealer?
Hill: One way is to explain that the hybrid expands your building envelope so you
have more area plus setbacks plus parking area that you have to provide.
Hammler: If you just want to park cars, you know what I mean? They want the
space for cars not...
Hill: The car business is not as enticing as maybe for other types of development. We
were wanting to bring the buildings up to the street. That's part of the objective here
to make a consistent streetscape. When you have massive fields of parking, that's not
consistent.
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Hammler: So at some point the market has to get involved relative to the values
associated with there is greater value, let's just hypothetically say for a business
investor to come in to say I am going to provide an attractive price to a car dealer that
will make it more enticing for them to be located, say down on Cardinal Park, versus
I would have a higher, better value associated with negotiating this form based code
hybrid concept ... I am trying to understand conceptually...
Wells: If I may, I think Susan gave a couple of examples and mentioned there might
be even others and one was to target certain types of businesses. In other words, to
look geographically. I would tend to lean towards the geographic approach because
one of the things we are looking at with form based code and one of the things
Council talked about was this is an opportunity for redevelopment. Redevelopment
might be a single parcel. It might be combining parcels. I think when you are
marketing something like this, which really in a sense is very significant because what
you are defining is what's going to be a by right use in various areas of the town
without the benefit of the proffers. So, the significance of what becomes part of the
ordinance, what becomes part of the DCSM, is there is not a judgment from the
council level as to what is being implemented, it's follow these steps and this is what
happens. To send that message to individual existing businesses only is only part of
the story. That's why I... and again, that may as I think about it more, there might be
something different that we would do but at a minimum I would tend to think
geographically in whatever area is defined and reach out beyond just the existing
property owners but you are then working with your economic development
commission both in the town and the county trying to identify people who may want
to look at either vacant or underutilized or not used parcels in town and say oh, well
if we look at these couple of sections, we may want to come up with this particular
use and if we do these types of setbacks and requirements you can do certain things
and predict that, which is, I think one of the key points that form based code allows
and one of the things that we heard in the improvements to the development process
is give me something that's predictable and this is what this does in a fairly significant
scale.
Hammler: Okay, thank you.
Butler: I can't support the hybrid approach in any way, shape or form. I think it's
not ... to not put too fine a point on it, horrible for the town. I think it's
basically... what it does is it gives all the authority basically to the developers and
removes a lot of it from the town. I am really upset with staff for basically panicking
in the November meeting because staff came in and basically said that the regulating
map ... form based code heavy is going to cost the town $11 to $30 million, if I
remember correctly and that's completely and absolutely false. We don't have to
spend any money with the form based code heavy. The worst case, if we decide to
not spend any money, the worst case is the area does not get redeveloped. We don't
have to spend a dime. It costs the town nothing. Absolutely zero. A worst case
doesn't get developed. There may be a case where it develops slower or it takes
longer or there may be a time when the town wants to come in and add some
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incentive to what's being developed so that it happens in a way that we prefer. But
there is a requirement for the developers to pay for the infrastructure. Town zero.
With the hybrid, what's going to happen is sure we will get some streetscape that we
like but the town is going to end up paying for all of the infrastructure because I don't
see any incentive for the developers to go and do it unless it happens to be in their best
interests. But if it is all by right and they say well we are not going to build this road,
they don't build the road, right? What's to force them to build the road?
Hill: If it is shown on the master plan, when they come in with their site plan, the
planners will look at it to see is the road proposed in accordance with the town plan.
If it is, then good. We have reached our goal. If it is not, we are going to work with
them to try to get them to locate it as close as possible to that grid network.
Butler: Right, okay. Then they say okay and they don't build it. Okay. What's to
force us ... how do we force them to build it when it is not in the regulating map? It's
in the town plan as opposed to in the zoning. In the zoning they are required. We
got that. In the town plan, yeah well, we talk about it. Guess what? Council will
provide exceptions every time. So, we will end up spending many, many more
millions of dollars on infrastructure with the hybrid approach than we will with the
form based code heavy and it's not necessarily going to look like anything that we
wanted in the first place because the whole idea is we build these things and we are
going to give more density. What's the incentive for more density? The incentive for
more density isn't just putting the building up to the street. That costs the builder
pretty much nothing. The incentive is to have the developers build the infrastructure
that we were going to require them to build. That's the trade off or the incentive for
the higher density. Without that incentive, yeah there is going to be a lot of
redevelopment, but we are going to be on the hook for just a ton of money. If we
don't build these roads ... the whole idea ... I mean half of the idea was not so much the
streetscape but to provide a grid network of roads that would allow traffic to flow
more smoothly through town. As far as I can tell, we are basically giving that up and
making it kind of optional and hoping that it comes along on its own and it's going to
be a fight every single time and it's not going to end up happening. So, we are going
to have clogged roads. We are going to have more storm water issues. We are going
to have all of these problems and we are going to have to step up, just like we have
done in the past, and we are going to have to build all these things so we are in for just
a ton of money to be spent and I don't see it. It is going to be much more money than
it was when staff panicked in November. And now, we are late in producing what we
have tried for five or six years to do because we had this meeting in November and
then staff went off in another direction. I just can't see it. I am upset. I am not going
to vote for an extension of time and I am certainly not going to vote for a hybrid
approach. I think it's much worse than Tom's form based code lite. If you want to
do form based code lite, let's do it, but this is not it.
Titus: I am not versed in form based code and I really don't now what the issue is.
My concern is you are losing the hammer that you have to squeeze to get the proffers
and pay for those things that are either required or not required. I mean everybody
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knows that jurisdictions pay hardball with people and you either do it or else. That's
the way it has to be done. They get compensated in other days but I do have ... who is
the steering committee. Can you help me with that?
Hill: I can. The Council appointed a group of individuals that is comprised of some
folks in the development community. It is business owners, planners, zoners, and
engineers. A group of folks to help guide the development of the form based code.
Titus: I haven't been on that side of the fence for many years. I can cowardly say
those guys have one interest... it's their own. I don't tell you that they don't ... I guess
you can say I kind of soured on the business because it's not fair anymore. The
regulations are regulations and I abide by the regulations.
Martinez: is there any way you can get us a list of the steering committee? I lost
track of them.
Titus: I don't need it. If you want it ... I don't need it myself. I know the general kind
of people you are talking about. Is this something that is going to happen in this
election year?
Mayor: If we don't do something to extend the date, it goes into effect March 1 of
this year. Which is why staff is concerned because they feel they are not ready for
implementation on March 1, which is why they are requesting an extension. If we
don't do something to extend, it is implemented March 1.
Titus: Well, if you change, is it going to be this calendar year? I guess that's my real
question.
Mayor: Theoretically there is a date in the staff report that suggested maybe May 1,
but I don't know if that really gives you enough time, though. It could be extended
past 2012, or it could be extended to sometime within 2012.
Titus: I am concerned about Katie's comment about the public input. The problem
with the public input is guys aren't technically sound enough to tell you what they
like. They will tell you generalities and you need that kind of input. I'm not saying
Katie is wrong. You do need some technical information on what the consequences
of this is. I can't tell you enough about incentives in here have to be significant
because we had ordinances, parts of chapters in our zoning ordinance in the county
no one ever took advantage of. We thought they were good. I thought they were
good and people just didn't do it. Part of it because they didn't want to do it and part
of it because they didn't participate in the discussion to write the ordinance, so it was
written by people who were technocrats, let's say, rather than people who used it.
When some developer finds out that he has to contribute x dollars before something,
then he is going to make his decision economically or not. So, I think we have to
have somebody who has a knowledge to be able to say a 24% increase is not enough
and I agree with Susan that it is not enough. We have tried that and it didn't work. I
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kind of like what Tom suggested. I don't know what you have been through, Dave,
with this thing. What I suggest we need to do is go around the table and see where
people are and then ask the staff, John or Susan, either one of them to give us a
schedule as to what we need to do and how we need to do it if we are going to do the
hybrid. Because I think the town needs more control, particularly outside and some
inside too. Streetscapes, building direction, etc. We need the hammer to be able to
do that. I mean you need a hammer and people are not going to like it. If you want
the town to look like it does, it's like me and downtown. I see that downtown like it
was 70 years ago, or nearly 70 years ago and I like it. I don't want to change it. So, if
we could duplicate that type of thing inside the bypass, I'd be really, really happy. I
think it would make a real good ... but I am not sure that form based code is the way to
do it to answer you, Dave. I understand your position exactly. The flip- flopping is
aggravating. We all did it when I was there.
Mayor: First of all, I can completely understand Dave's frustrations. I do view it a
little bit differently. I don't really blame staff for panicking. I think they did the best
job they could at coming up with the potential costs to the taxpayers of $30 million,
$35 million for the original form based code proposal and I think many of us on
Council were very concerned about that impact and that is why staff stopped pressing
forward. But even before the November presentation with the costs involved, the
planning commission was already concerned that they couldn't make the
amendments to the DCSM in time to implement all of this on March 1. Regardless of
what else we do, I think we need to extend the deadline. I frankly don't think two
months is enough time. I think you need more. I think you need at least six months,
maybe a year to work out all the details. I mean I voted against form based code
before. I am a little more impressed with the hybrid because it requires less density,
although I think Terry makes a good point when he says 25% increase in density may
not be enough to incentivize developers but I like the idea of extending the look of the
historic district as far through the town as we can, but I am strongly opposed to the
steering committee's proposal that we allow the buildings to go up to 70 feet. I think
that destroys the historic feel of any new development. I like the idea of keeping the
buildings at 45 feet in height, so I am not wild about the steering committee's
proposals to amend the staff presentation of the hybrid form. But anyway, a lot has
been said on all sides. We will go forward tomorrow, hopefully with something to
extend the deadline, if nothing else.
Martinez: I would like to see a resolution that goes ahead and moves forward, but
extends the deadline for at least three months.
Hammler: For the actual heavy version, not the hybrid?
Martinez: Right. If we are going to take a straw vote, that's my suggestion.
Mayor: I would not support the heavy because as we saw in the staff report, it can be
up to 100% increase in density and 70 feet in height and I just don't think that's in
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keeping with the flavor of the town that most of our residents value. Others want to
weigh in? Kevin?
Wright: I do agree that regardless, we need to extend the time line. The one caution
I have with the hybrid approach is with the crescent form based approach that we
have, we have addressed most of the issues with landowners, the folks that are in
there. One of the reasons that district got contracted is the planning commission had
struggles even just crossing market street to address some of those property owner's
issues. So, if we go the hey we are going to rescind and go the hybrid approach, that
is going to take awhile because we are going to pull people back in and their
objections were satisfied when they were moved out. So, I do see us getting to a point
where if we keep kicking the can down the road, the can just eventually gets rusty and
falls apart. But I don't think we should kind of play chicken with the March 1 date
when I have my professional staff telling me they won't be ready for it regardless. So,
as a council if we are not sure we want to be perhaps, the option 1 resolution is simply
hold the public hearing and extend the date, and then we hold out whether or not we
rescind the CFBD for a different discussion at a later time. That's one of the cautions
that I had with the hybrid approach is we are going to bring a lot of other people back
into the discussion that might not be real excited to have that discussion.
Hammler: I support Kevin's point, which I think is what Marry was saying earlier.
At some point we have thrown now a new word in, which is a descriptive word about
form based code which in our ... the way staff is presenting it means we have to now
delineate what we mean because it is a new set of boundaries, which is Kevin's point.
So, I don't know if there is a middle ground, which I think you were trying to
articulate, Kevin, which is if we extend the date, that doesn't set the expectation for
the community that as we are continuing to explore form based code, we may be
entertaining modifications. I don't think we need to give it a specific adjective. We
are going to be considering ... I think we need to be very careful about the words to
convey what we are trying to do which may be determining how to create Tom's
vision, which I think has to do with the entire town. I don't know whether you call it
form based code or not. This is what I am struggling with. I completely support
continuing to support evolving this concept to be able to achieve what I think we are
all trying to achieve within a set of parameters that we can accept, which is we love
the historic district. We know that towns need to explore other ways of developing
buildings that are more pedestrian friendly that can support the type of densities that
allow better uses of more sustainable transportation into the future. Those are the
sorts of principles we know we are trying to achieve. It seems like we are limiting
ourselves by now we are calling it something so specific that it is now the hybrid and
we have until the next date to figure out whether the hybrid is going to work. Why
can't we say we are going to extend the date and continue to explore whatever this
ordinance amendment would be that really gives us the flexibility to do what we need
to do, which is to be able to talk to additional business owners and keep learning. I
certainly can say that I support what Kristen said, but at some point if the costs are so
high we know we can't swallow them, but that gets back to yes, I support extending
the deadline. I am a little concerned about how we articulate how we are going to
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continue to do the research and not say we are throwing the whole thing out, we are
no longer looking at it but I do support continuing to figure out how to balance staff
time so it's not taking a lot of time, but not completely giving up.
Wells: I think I can address... Jeannette and I have huddled a little bit. I don't want
to get ahead of Council expressing an opinion, but in terms of maybe some better
language, I think we might have an idea for that, but you might want to keep going.
Titus: You could call it a revised B -2. There are five things you could call it. You
don't have to call it form based code. My concern is if we extend this thing any
length of time if somebody decides they are going to file, then we got somebody
vested, then we are in big trouble. Big trouble. I don't know what Jeannette would
say about that, but I am concerned about going down the road and having people vest
themselves.
Wells: I think the language... this may help address it. What we were talking about,
the challenge is you have an implementation date, but you have also adopted an
ordinance so the ordinance has an effective date of March 1. So, what you have got
to do is in a sense not just say you are moving the date. You have got to speak
somehow to the ordinance. Rescind may not send the message that the council is
ready to say. At this point, the word that came up was delay.
Irby: Delay implementation and then we perhaps put in the ordinance until it is
actually enacted with all of the relevant... and I will come up with
something... ordinances to actually implement it. There will be no vesting of rights.
We will put that clarification in the ordinance.
Wells: We think what that does with some appropriate language around the actual
action, would be to speak to what other research you might want done and I think
that's probably the broader comment.
Hammler: And feedback.
Wells: And feedback. And whatever else you want with it. That deals with the ... it
doesn't send the wrong message by rescind because that means that you have nothing
in terms of a Council direction. What you are saying is that for the most part there is
interest in doing something that heads this direction, whether it's heavy, light or in
between, there is some discussion about looking at some other alternatives or doing
some outreach in research. Rescind might not send the right message, but delay with
the additional language protects the vesting and still gives us the opportunity to go
down some other tracks, but it doesn't necessarily mean at the end of all this you
don't come back and vote or keep going with what you have in place right now.
Hammler: And you as the town manager have heard enough discussion tonight that
you know how to balance staff direction as relates to you know we don't this to be so
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all encompassing that nothing else gets done, but we want to continue to make
progress to some balance.
Wright: Well, once he gets a resolution passed by us tomorrow, I think he is saying
he has enough to write a draft.
Wells: I can get you through tomorrow and I think I can get you through tomorrow
in a way that balances, just to look at some of the options on different ends of
this ... we don't want to say we are not doing this at all, so rescind probably is
problematic at one level. On the other hand, we have got to deal with the ordinance
so we don't end up accidentally allowing vesting. But we might have opened some
doors that allow us to modify the plan on the table in a way that might be helpful,
might provide some genuine incentives and has some practical benefits that maybe
have come up now that the steering committee has had another opportunity to look at
it. The idea isn't to make this another project that goes on another five years. To try
to bring it to some tighter effort and I'll tell you what the minimums need to be.
There are probably other considerations that I won't speak to that you all can factor
in.
Titus: I'll tell you that God knows this ... I have been through the wars with the
zoning ordinance and I did for like a year three or four times a week. I would be glad
to help the staff on those kinds of issues. The heavy ones I can't answer because I
don't know the thrust and I won't be here when the thing is adopted. I think we can
draw up some parameters with Susan and John and the staff. If you want me to do
that, I would be happy to do that.
Mayor: I'm sure they would love to have some help.
2. Additions to Future Council Meetings
Butler: Somebody has got to take Ken's place. The Shirley Pearson thing tomorrow
night. When I look at it, it looked straight forward. Is there any reason why that
can't be on consent? Is there anything controversial?
Hammler: Well I actually had a question. I don't know if I ever got the email answer
which is I don't really understand what the ultimate cost is to the town of allocating...
Wells: This ties in with the capital project for the alley improvements.
Hammler: So for four years we are allocating four spaces in the garage which might
otherwise bring in what revenue?
Wells: I can go through the math for you because you are also looking at what you
would have to do to condemn that land because the parking basically is a barrier to
the walkway that is being developed as part of the downtown project.
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Titus: The question I have is whether the paving and striping is done in perpetuity or
one time. The agreement doesn't address it, it just says it will be done.
Wells: As we do it normally in the garage, it would be done.
Irby: In the normal course of business. Right.
Wells: We can put it on consent.
Butler: I am good with it on consent. The Liberty Street sidewalk that we got an
email about?
Wells: We are following up on it. I will get an answer to you before our council
meeting as soon as staff gets back to me.
Wright: Is that the one on Valley View?
Wells: Both of them.
Butler: I was wondering if we ought to consider a resolution in support of the county
getting the authority to impose a meals tax.
Wells: Yes. Don't tie me down. Yes.
Butler: You know, if they had a meals tax...
Wells: It would be helpful to us.
Butler: I would like to do that and I don't know if we could do that tomorrow or if
we have to wait two weeks.
Martinez: I'd like to wait about six months.
Butler: I don't know when it is going to come up. In any case, it's something to think
about. Last and not least, staff ..with the downtown improvements, staff came back a
couple of meetings ago and one of the options they had was to one way King Street.
Well, I thought about it and looked at it and have driven around and I think there is
some potential to like one way King Street for two blocks and one way Wirt Street the
other direction for two blocks. I was wondering if staff could look at that. Rather
than coming back with this is a good idea, or a bad idea, I would like them to come
back with okay in order to implement it...
Wells: How do you make this work.
Butler: Because for about 85% of it, I think it would be something we could try really
easily. But...
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Hammler: Would that include bike lanes?
Wells: It could.
Martinez: We could add bike lanes if it was one way.
Wells: One way opens up a lot of doors. We have done some preliminary drawings
Butler: Paint a few signs and some jersey barriers. You could fit all that, I think on
the street, and just to try it out for...
Titus: Poor Jock. He is gone and here you are running over top of him.
Mayor: The business community in the past has been very strongly opposed to one
way streets in the downtown, but if this goes anywhere we will want to make sure
they have plenty of time to comment.
Butler: It would only be two blocks and it could solve...
Wells: I think the notion is there is a way to experiment without making it a full
capital project if you want to try. That is the jist of a number of different alternatives.
Butler: You might even be able to not only keep all the on street parking on King
Street, but maybe add some on street parking on Wirt Street since it would only be
one travel lane. There is potential there so that might make the whole issue go
away ... and just create other ones.
Mayor: It always does.
Titus: I read this thing about the County courthouse .... I forgot what it was...
Mayor: Courthouse expansion.
Titus: And there is no traffic study going to be presented formally. I have a real
problem with that. Serious problem with it. Because I think they have to show us
how they are going to get there following our infrastructure plan. I am not going to
get in front of the judges, but in front of the Board of Supervisors, that's another
matter.
Wells: We will be tracking that closely and there was some... the jist of what caused
that memo to come forward is there has been some discussion at the county level of a
potential stakeholders group. I have not heard any follow -up since our meeting so I
am not sure where that might be going. But, I think that's a key point that I think
Council has and it goes back to when Council talked about previous and it's still, I
think, a concern for all the town businesses.
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Hammler: Just don't forget if we are negotiating at any level at any point, we
certainly want to keep talking about their fence as it relates to our downtown.
3. Adjournment
n The m�ing was adjourned at 10:34 p.m.
Clerk of Cc
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